Opinion
M-21-84 (RMB)(KNF) (MDL 1339).
November 29, 2004
REPORT and RECOMMENDATION
I. INTRODUCTION
Plaintiffs petition the court for an award of attorneys' fees and expenses in this class action brought against United Parcel Service, Inc. ("UPS") and related defendants (together "defendants") by purchasers of "excess value" shipping insurance ("EVIC") offered by UPS. For the reasons discussed below, the Court recommends that counsel for the plaintiffs ("plaintiffs' counsel" or "class counsel") be awarded $6,405,415.61: attorneys' fees in the amount of $5,652,271.36 and expenses in the amount of $753,144.25.
II. BACKGROUND
The factual history of this case is set forth in full in the court's previous decisions. See In re Excess Value Insurance Coverage Litig., No. M-21-84, MDL-1339, 2004 WL 1724980 (S.D.N.Y. July 30, 2004); In re EVIC Class Action Litig., Nos. M-21-84, MDL-1339,00 Civ. 3811, 02 Civ. 2703, 2002 WL 1766554 (S.D.N.Y. July 31, 2002). Stein Jewelry Co. v. United Parcel Service, Inc., 228 F. Supp. 2d 304 (S.D.N.Y. 2002). Therefore, only those facts relevant to the instant application for attorneys' fees and expenses are presented here.
The purported class actions comprising this litigation, some of which had been pending since 1998, were consolidated before the court by the Judicial Panel on Multidistrict Litigation ("MDL Panel") on April 13, 2000. Prior to that date, attorneys for the plaintiffs in 27 separate lawsuits engaged in various preparatory activities including researching issues of law, contacting experts and witnesses and consulting with clients. Subsequently, these attorneys filed complaints against the defendants in state and federal court alleging, among other things, fraud, breach of contract, insurance regulatory deficiencies, excessive rates and Racketeer Influenced and Corrupt Organizations Act ("RICO") violations. Additionally, since many of the actions comprising this litigation were prompted by an August 1999 United States Tax Court ruling which had found that UPS established improperly an insurance company in connection with its EVIC program to avoid income taxes, the attorneys' preconsolidation activities also included a review of that ruling.
See UPS of America, Inc. v. Comm'r of Internal Revenue, No. 15993-95, 1999 WL 592696 (U.S. Tax Ct. Aug. 9, 1999) (cited in In re Excess Value Insurance Coverage Litig., 2004 WL 1724980, at *1).
Thereafter, following the MDL Panel's decision to consolidate the actions, plaintiffs' counsel: (1) initiated discussions pertaining to the organization of the litigation; (2) participated in negotiations concerning who should serve as lead counsel; (3) attended a May 1, 2000 status conference in an action which had been pending in the court prior to the MDL Panel's consolidation decision; and (4) prepared a "Case Management Order" for submission to the court.
The Case Management Order, which was entered on July 7, 2000, named as "Lead Counsel" for the EVIC class action plaintiffs Steve W. Berman of Hagens Berman, LLP, and Stanley M. Chesley of Waite, Schneider, Bayless Chesley, and as "Antitrust Lead Counsel," the firm of Milberg Weiss Bershad Hynes Lerach LLP. In addition, the Case Management Order provided for a steering committee ("Plaintiffs' EVIC Steering Committee") to consist of Lead Counsel along with Kip B. Shuman of Dyer Shuman, LLP, Jeffrey H. Squire of Kirby, McInerney Squire, LLP, Douglas H. Morris of Oldfather Morris, David Ewing of Gardner, Ewing Souza, Phillip Bohrer of Koederitz Bohrer PLC, and Calvin C. Fayard Jr. Under the terms of the Case Management Order, Lead Counsel were charged with "coordinat[ing] the prosecution of these cases so as to avoid unnecessary fees and expense, strain upon judicial and the parties' resources and duplication of effort and . . . coordinat[ing] on strategic matters."
In August 2000, plaintiffs filed their First Amended Complaint. Thereafter, class counsel prepared memoranda in opposition to the defendants' motions to dismiss, engaged in discovery and, in February 2001, convened a meeting in Cincinnati, Ohio, to discuss various matters pertaining to the litigation.
On June 20, 2001, the United States Court of Appeals for the Eleventh Circuit reversed the Tax Court ruling. Since the Eleventh Circuit's opinion called into question the findings that had prompted many of the actions comprising the instant litigation, plaintiffs' counsel were required to review the opinion in order to determine the extent to which it affected the plaintiffs' claims. Plaintiffs' counsel also engaged in review and analysis of the court's July 30, 2002 resolution of the defendants' motions to dismiss.
See UPS of America, Inc. v. Comm'r, 254 F.3d 1014 (11th Cir. 2001) (cited in In re Excess Value Insurance Coverage Litig., 2004 WL 1724980, at *2).
"Following the July 30, 2002 Decisions and Orders, Plaintiffs were left with claims of breach of contract, RICO, and federal antitrust violations." In re Excess Value Insurance Coverage Litig., 2004 WL 1724980, at *2.
On November 12, 2002, the court "entered an order upon stipulation and consent of all parties certifying a nationwide class alleging RICO, beach of contract, and intentional interference with contract claims, and certifying subclasses of Plaintiffs from Texas, Kentucky, South Carolina, and Kansas asserting claims under the insurance statutes of their respective states." In re Excess Value Insurance Coverage Litig., 2004 WL 1724980, at *2. Prior to this date, plaintiffs' counsel had engaged in various activities preparatory to class certification including, among other things, negotiations with counsel for the defendants.
In its Class Certification Stipulation and Order, the court appointed David Zoll of Zoll Kranz, LLC to Plaintiffs' EVIC Steering Committee, Ben Barnow of Barnow Associates P.C. as counsel for certain statewide subclasses, and Brian Herrington of Herrington White, PLLC as "Special Counsel" for the Stein Jewelry subclass of plaintiffs.
During the period from November 2002 through December 31, 2003, plaintiffs' counsel participated in settlement negotiations, including numerous settlement conferences held by the court. An agreement in principle for a global settlement was reached on October 10, 2003. A Stipulation of Settlement was filed on December 31, 2003.
Thereafter, on April 20, 2004, plaintiffs moved for, inter alia, an award of attorneys' fees and expenses in the amount of $19,340,000 ("Fee Application"). See In re Excess Value Insurance Coverage Litig., 2004 WL 1724980, at *5. In support of the Fee Application, Lead Counsel Stanley M. Chesley submitted an affidavit setting forth the procedural history of the litigation and a description of the work performed by plaintiffs' counsel at each stage of the litigation. The defendants did not oppose the Fee Application; however, counsel to certain class members filed objections to the proposed fees.
On May 5, 2004, plaintiffs' counsel were ordered to submit, inter alia, documentary evidence of attorneys' fees and costs incurred in this action. Further, plaintiffs' counsel were directed to employ the "lodestar" method in calculating their fees, that is, to provide the hourly rates of each professional, the number of hours each professional worked, and copies of contemporaneous time records.
On May 27, 2004, the matter of the Fee Application was referred to the undersigned to conduct an inquest and to report and recommend the amount, if any, of attorneys' fees and costs to be awarded in this action. Specifically, this Court was directed to: "(1) determine Plaintiffs' attorneys' actual and reasonable 'lodestar' . . . and (2) determine the actual and reasonable expenses incurred by Plaintiffs' attorneys." In addition, this Court was directed to make the Fee Application documents available for public inspection through June 24, 2004, at the Southern District of New York courthouse facility, under the supervision of the undersigned.
On June 10, 2004, the Court issued a protective order setting forth the procedures to be employed with respect to information produced and disclosed by plaintiffs' counsel concerning the Fee Application. Thereafter, the documents were opened to public inspection. On June 29, 2004, counsel for class member Stainless System Inc. ("SSI"), who had availed himself of the opportunity to inspect the materials provided by plaintiffs' counsel, submitted a memorandum in support of objections by his client to the Fee Application. Lead Counsel Stanley M. Chesley's response to SSI's objections, together with supporting documentation, was submitted on July 8, 2004.
SSI, along with a number of other class members who had objected to the Fee Application, subsequently withdrew their objections in return for certain modifications in the terms of the settlement; among other things, plaintiffs' counsel agreed to reduce their application for expenses by $204,975.39, and the parties agreed not to oppose the request by SSI and other objectors for reasonable fees and expenses, not to exceed $600,000, to be drawn from class counsel's fees. The reduction in the application for expenses reflected, in addition to amounts claimed by certain individual firms, the amount sought as reimbursement for contributions by counsel to a common litigation fund which was established to pay for such expenses as copying, document production, class notice and experts. According to Lead Counsel Stanley M. Chesley, $186,584.23, the amount remaining in the litigation fund, was to be deducted from class counsel's expense request.
Thereafter, following the resolution of certain other matters in dispute, the court, on July 14, 2004, entered the Fourth Addendum to the Stipulation of Settlement. On July 30, 2004, the court granted plaintiffs' motion for final approval of the settlement and deferred, without prejudice, consideration of the Fee Application pending receipt of, inter alia, the report contained herein.
Documents provided by class counsel in support of the Fee Application include: (i) Plaintiffs' Revised Time and Expense Summaries and Declarations; (ii) contemporaneous time records and a record of expenses for each of the firms whose attorneys and paralegals provided legal services to the plaintiffs; (iii) class counsel's reply memorandum in response to SSI's objections to the Fee Application; and (iv) a declaration by Lead Counsel Stanley M. Chesley in response to SSI's objections to the Fee Application and a revised request for reimbursement of expenses. Included as attachments to the declaration were: (a) descriptions of the qualifications of the attorneys who principally worked on the litigation; (b) copies of an electronic airline ticket issued to attorney Terrance Goodman of Waite, Schneider, Bayless Chesley establishing that Mr. Goodman traveled from Cincinnati to San Francisco in February 2001 in coach accommodations; (c) letters from four of the firms comprising plaintiffs' counsel responding to SSI's objections; and (iv) a copy of the agreement entered into by plaintiffs' counsel and certain objectors that culminated in the Fourth Addendum to the Stipulation of Settlement.
III. DISCUSSION
The Second Circuit Court of Appeals has held that "where an attorney succeeds in creating a common fund from which members of a class are compensated for a common injury inflicted on the class . . . the attorneys whose efforts created the fund are entitled to a reasonable fee — set by the court — to be taken from the fund." Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 47 (2d Cir. 2000). The district court has discretion to determine what constitutes a "reasonable" fee. Id.
There are two distinct methods of calculating reasonable attorneys' fees in a class action. See id.; In re Worldcom, Inc. Erisa Litig., No. 02 Civ. 4816, 2004 WL 2338151, at *10 (S.D.N.Y. Oct. 18, 2004); In re AMF Bowling Securities Litig., 334 F. Supp. 2d 462, 467 (S.D.N.Y. 2004). The first is the "lodestar" method under which "the district court scrutinizes the fee petition to ascertain the number of hours reasonably billed to the class and then multiplies that figure by an appropriate hourly rate." Goldberger, 209 F.3d at 47; see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983) (finding that lodestar figure is calculated by multiplying the number of hours reasonably expended by each attorney on the litigation by a reasonable hourly rate, and is strongly presumed to represent a reasonable fee); Sea Spray Holdings, Ltd. v. Pali Financial Group, Inc., 277 F. Supp. 2d 323, 324-25 (S.D.N.Y. 2003) (same). Courts also employ a "percentage" method in determining reasonable attorneys' fees in a class action. See In re Worldcom, Inc. Erisa Litig., 2004 WL 2338151, at *10 (citing Savoie v. Merchants Bank, 166 F.3d 456, 460 [2d Cir. 1999]). Under this method, a court sets some percentage of the recovery as a fee. See id. As noted earlier in this writing, your Honor has directed the Court to use the "lodestar" method in determining reasonable attorneys' fees in this case.
Reasonable Hourly Rates
In general, when fixing a reasonable rate for attorneys' fees, it is appropriate for a court to consider and to apply the prevailing market rates in the relevant community for similar legal work of lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S. Ct. 1541, 1547 n. 11 (1984). In addition, it is permissible for a court to rely upon its own knowledge of private firm hourly rates in deciding what reasonable attorney fees are in the community. See Miele v. N.Y. State Teamsters Conf. Pens. Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987).
Where legal services are rendered over a period of several years, "the rates used to calculate the lodestar should be 'current rather than historic hourly rates.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (citing Missouri v. Jenkins, 491 U.S. 274, 284, 109 S. Ct. 2463, 2469); see also Grant v. Martinez, 973 F.2d 96, 100 (2d Cir. 1992);Koehler v. Bank of Bermuda Ltd., No. M18-302, 2004 WL 906274, at *3-4 (S.D.N.Y. Apr. 27, 2004), but see In re Painewebber Ltd. Partnerships Litig., No. 94 Civ. 8547, 2003 WL 21787410, at *3-4 (Aug. 4, 2003) (dividing litigation into two periods and applying historic rates to work performed in the earlier period and current rates to work performed in the later period). Current rather than historic rates should be applied in protracted litigation in order to compensate counsel for the delay in payment. See Grant, 973 F.2d at 100; Koehler, 2004 WL 906274, at *3.
"[T]he relevant community for calculation of the lodestar with respect to an attorney's services in the district court is normally the forum district." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 369 F.3d 91, 95-96 (2d Cir. 2004) (citing In re "Agent Orange" Product Liability Litig., 818 F.2d 226, 232 [2d Cir. 1987]). Following consolidation, this action took place in the Southern District of New York; therefore, the applicable hourly rates are those of attorneys practicing in this district. See Patrolmen's Benevolent Ass'n of the City of New York v. City of New York, Nos. 97 Civ. 7895, 98 Civ. 8202, 2003 WL 21782675, at *2 (S.D.N.Y. July 31, 2003) (noting that it is well established that the relevant community is the district in which the court sits).
The Court finds that, in this judicial district, reasonable hourly rates for litigation partners in comparable cases are between $350 and $595 per hour. See In re AMF Bowling Securities Litig., 334 F. Supp. 2d at 467-468 (finding that hourly rates of $350 to $545 for partners in class action litigation were reasonable); Gucci America, Inc. v. Duty Free Apparel, Ltd., 315 F. Supp. 2d 511, 525 (S.D.N.Y. 2004) (finding rate of $425 per hour for partner in trademark litigation to be reasonable); Dula v. Amereon, Ltd., No. 00 Civ. 8156, 2004 WL 1586410, at *4 (S.D.N.Y. July 15, 2004) (finding billing rates of $375 to $425 per hour for law firm's partners to be within normal rates); Bianco v. Erkins, 284 B.R. 349, 351 (S.D.N.Y. 2002) (finding, in 2002, that rates of $535 to $595 per hour for partners were reasonable). Additionally, the Court finds that reasonable fees for associate attorneys in this district are between $150 and $350 per hour. See Gucci America, Inc., 315 F. Supp. 2d at 525 (approving $290 per hour for an associate);Dula, 2004 WL 1586410, at *4 (finding $275 per hour for an associate to be reasonable); Santa Fe Natural Tobacco Co., Inc. v. Spitzer, Nos. 00 Civ. 7274, 00 Civ. 7750, 2002 WL 498631, at *6-9 (S.D.N.Y Mar. 29, 2002) (finding rates from $180 to $375 for associates appropriate in 2002). Finally, paralegal and law clerk time is reasonably compensated at up to $150 per hour. See Yurman Designs Inc. v. PAJ, Inc., 125 F. Supp. 2d 54, 55-56 (S.D.N.Y. 2000) (finding rate of $162.35 for paralegals reasonable for this district); Berlinsky v. Alcatel Alsthom Compagnie Generale D" Electricite, 970 F. Supp. 348, 351 (S.D.N.Y. 1997) (finding paralegal billing rate of $150 per hour reasonable); Santa Fe Natural Tobacco Co., Inc., 2002 WL 498631, at *7-9 (approving hourly rates of $48 to $145 for paralegals and law clerks).
Reasonable Number of Hours
"In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant, or otherwise unnecessary hours."Sea Spray Holdings, Ltd., 277 F. Supp. 2d at 325 (quotingQuaratino v. Tiffany Co., 166 F.3d 422, 425 [2d Cir. 1999]). Generally, in a class action, time spent reviewing the work of other class counsel is not compensable, absent a showing that some work was performed that added value to the litigation. See In re AMF Bowling Securities Litig., 334 F. Supp. 2d at 468 (finding that attorneys' work "reviewing and offering editorial comments on the work of others" was not compensable "absent a particularized showing of the value that it added"). In addition, duplication of effort by lead counsel and a failure to delegate work to junior, less expensive attorneys may be grounds for reducing an award of attorneys' fees. See, e.g., Klein v. Salvi, No. 02 Civ. 1862, 2004 WL 596109, at *9 (S.D.N.Y Mar. 30, 2004). Moreover, courts in this judicial district generally do not credit travel time at the attorneys' full hourly rate and regularly reduce the amount awarded for travel to 50% of that rate. See Sea Spray Holdings, Ltd., 277 F. Supp. 2d at 326 n. 5; Wilder v. Bernstein, 975 F. Supp. 276, 283-84 (S.D.N.Y. 1997); Petronella v. Acas, No. 302 CV 01047, 2004 WL 1688525, at *1 (D. Conn. Jan. 23, 2004).
In the Second Circuit, a party seeking an award of attorneys' fees must support that request with contemporaneous time records that show, "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, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154. Where documentation of the number of hours expended is vague or incomplete, a court may reduce the award. See In re Painewebber Ltd. Partnerships Litig., 2003 WL 21787410, at *4. Further, "[b]ecause it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application, courts apply across-the-board percentage cuts as a practical means of trimming fat from a fee application." Id. (quoting New York State Ass'n for Retarded Children, 711 F.2d at 1146) (internal quotation marks omitted).
Expenses
Attorney fee awards include "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Patrolmen's Benevolent Ass'n of the City of New York, 2003 WL 21782675, at *2 (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 [2d Cir. 1998]). The fee applicant has the burden of establishing the reasonableness of the expenses it seeks to recover; therefore, a failure to itemize the reasons for substantial expenditures is grounds for a reduction in the amount of an expense award. See General Motors Corp. v. Villa Marin Chevrolet, Inc., 240 F. Supp. 2d 182, 189 (E.D.N.Y. 2002).
"Counsel are entitled to reimbursement only for those expenses incurred in the course of work that benefitted the class." In re Agent Orange Product Liability Litigation, 818 F.2d at 238. A court evaluating voluminous fee applications may develop guidelines that include limits for certain types of expenses.See id. at 237-238 (affirming application of limits to daily meal and nightly lodging expenses in connection with travel). In this action, the Court will limit air travel to $500 per roundtrip flight, cf. Mark Andrew of the Palm Beaches, Ltd. v. GMAC Commercial Mortg. Corp., No. 01 Civ. 1812, 2003 WL 21767633, at *2 (S.D.N.Y. July 31, 2003) (applying limit of $400 for roundtrip air travel between California and New York). Expenses for meals and lodging in connection with travel will be limited to $100 per day and $200 per night, respectively. Cf. id. (applying limit of $200 for nightly lodging expenses in New York City); In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1296, 1322 (E.D.N.Y. 1985), affirmed 818 F.2d 226, 238 (2d Cir. 1987) (applying limit of $50 to daily meal expenses in 1985). Additionally, a limit of $0.25 per page will be applied to facsimile expenses. Cf. Bristol Technology, Inc. v. Microsoft Corp., 127 F. Supp. 2d 64, 83 (D. Conn. 2000) (limiting facsimile transmission charges to $0.25 per page).
Several of plaintiffs' counsel have included in their expense applications their contributions to a common litigation fund ("litigation fund") that was used, inter alia, to cover the cost of certain notices to class members. According to the Plaintiffs' Revised Submission of Time and Expense Summaries and Declarations, counsel contributed a total of $659,095.41 in "assessments" to the fund. In a reply memorandum submitted in response to now-withdrawn objections to the instant Fee Application, plaintiffs indicate that $186,584.23 of the fund — approximately 28.3% — remains unspent. Since counsel may only recover expenses that were actually incurred to the benefit of the class, a 28.3% reduction will be applied to all expense applications stemming from contributions to the litigation fund.
IV. ATTORNEYS' FEES AND EXPENSES
A. EVIC Counsel Bohrer Law Firm
Bohrer Law Firm, L.L.C. ("Bohrer") requests a lodestar of $111,300 for 371 hours of work performed between September 16, 1999, and February 4, 2004, at an hourly rate of $300. Phillip Bohrer, the owner of the firm, served as a member of the plaintiffs' EVIC Steering Committee. The law firm is located in the state of Louisiana.
The hourly rate requested for attorney Phillip Bohrer is within the range of rates that have been approved as reasonable for other attorneys in this judicial district. Accordingly, the Court finds that the requested hourly rate of $300 is appropriate in the circumstances.
With respect to the number of hours spent on the litigation, a review of the records submitted by Bohrer indicates that he requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 10% of the total number of hours expended by the firm were devoted to this type of activity. As noted earlier, time spent reviewing the work of co-counsel generally is not compensable, absent a showing that some value was added thereby to the litigation. Bohrer has made no such showing. Therefore, a corresponding reduction in the number of hours reasonably spent by Bohrer in the prosecution of this action is warranted.
Additionally, Phillip Bohrer billed travel time at his full hourly rate for time spent traveling to and from Cincinnati, Ohio, for meetings related to this litigation, and to and from New York for an appearance before the court. Courts in the Southern District of New York generally do not credit travel time at the attorneys' full hourly rate, but customarily reduce the amount awarded for travel by 50% of that rate; therefore, the Court finds that attorneys' fees for time spent on travel should be reduced in this case. While Bohrer's time records do not distinguish between travel time and time spent on other activities, the Court will make that distinction for the purposes of calculating this award. The Court finds, therefore, that Bohrer is entitled to recover for 16 hours of travel time at the rate of $150 per hour. Accordingly, the Court recommends that Bohrer be awarded attorneys' fees in the amount of $95,400.
Bohrer also seeks $44,384.97 in expenses. A review of the summary of expenses provided by Bohrer indicates that the firm contributed $37,500.33 to the litigation fund. These payments, identified as "assessments," were made in two installments, of $8,333.33 and $29,167, respectively. As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $26,887.74) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. Additionally, in accordance with the expense guidelines set forth above, the Court finds that Bohrer is entitled to $3,519.27 for all other expenses incurred by the firm. Therefore, Bohrer is entitled to $30,407.01 in expenses.
Accordingly, the Court recommends that Bohrer be awarded $125,807.01: $95,400 in attorneys' fees and $30,407.01 in expenses.
William M. Chaires, Attorney at Law
William M. Chaires, Attorney at Law ("Chaires"), a sole practitioner with business offices located in the state of Maryland, requests a lodestar of $28,848 for 144.24 hours of work, performed between January 2001 and February 4, 2004, at an hourly rate of $200.
The Court finds that the requested billing rate of $200 per hour is reasonable and appropriate. With respect to the number of hours spent on this litigation, a review of the contemporaneous time records provided by Chaires reveals that approximately 2 hours were devoted to reviewing the work of other class counsel. For the reasons noted above, a corresponding reduction in the number of hours reasonably spent by Chaires during the litigation is warranted.
Additionally, in his affidavit submitted in support of the instant motion, Chaires avers that the time spent working on this litigation included: (i) approximately one and one-half hours of travel time for each meeting he attended with his client; and (ii) 25 hours of, inter alia, travel time for a trip to Richmond, Virginia, taken in connection with this litigation during October 2001. Although Chaires does not state what portion of the 25-hour period was spent actually traveling, under the circumstances, the Court finds it reasonable to conclude that at least 3 hours of Chaires' time on the occasion of the trip to Richmond was devoted exclusively to travel. Moreover, based on a review of the records, it appears that 13.4 hours were spent traveling to and from meetings with Chaires' client. For the reasons explained above, the amount of attorneys' fees awarded for the hours devoted exclusively to travel — in this case, 16.4 hours — should be reduced by 50%. Thus, Chaires is entitled to recover for 16.4 hours of travel time at an hourly rate of $100. Accordingly, the Court recommends that Chaires be awarded attorneys' fees in the amount of $26,808.
Chaires also seeks $22.05 in expenses. This appears to be a reasonable request and the Court recommends that it be granted.
Accordingly, for the reasons set forth above, it is recommended that Chaires be awarded $26,830.05: $26,808 in attorneys' fees and $22.05 in expenses.
Richard A. Childs, Attorney at Law, P.C.
Richard A. Childs, Attorney at Law, P.C. ("Childs") requests a lodestar of $41,675 for a total of 187.20 hours. Contemporaneous time records submitted by Childs indicate that attorney Richard A. Childs spent 162.20 hours working on this litigation, for which he billed plaintiffs at a rate of $250 per hour, while 25 hours were spent on the litigation by a paralegal, David A. Shaul, for which plaintiffs were billed at a rate of $45 per hour. Childs, which has business offices in the state of Georgia, provided legal services in connection with this action for the period May, 15, 2000, through March 1, 2004.
The Court finds that the hourly rates sought by Childs are within the range of rates considered to be reasonable for attorneys and paralegals in this judicial district. Furthermore, for the most part, the time records submitted by Childs enabled the Court to determine the nature of the tasks performed and the amount of time expended on those tasks. While the records contain some instances of "block billing," these are not so extensive as to warrant a reduction in the number of hours reasonably spent on the litigation by this firm. However, Richard A. Childs has billed for travel time at his full hourly rate. Moreover, the records indicate that while a trip from Columbus, Georgia, to New York required a total of 6 hours of travel time in October 2001, the same trip required a total of 12 hours of travel time in August 2002. Appropriate adjustments in the number of hours devoted to this litigation and the hourly rate at which travel time is billed result in a reduction of the lodestar to $38,675 (144.2 hours @ $250/hr + 12 hours @ $125/hr + 25 hours @ $45/hr).
Childs also seeks $954.48 in expenses. The Court finds this request to be reasonable and recommends that it be granted.
Accordingly, it is recommended that Childs be awarded $39,629.48: $38,675 in attorneys' fees and $954.48 in expenses.
DeSalvo Harris
The law firm of DeSalvo Harris, located in the state of Louisiana, requests a lodestar of $51,240 for 170.80 hours of work performed between November 1999 and February 20, 2004, at an hourly rate of $300. Vincent J. DeSalvo and Jack Patrick Harris, the attorneys associated with the firm, have submitted a joint affidavit in support of their fee application. However, the contemporaneous time records submitted by the attorneys do not indicate which of them performed the various tasks described in the records. Furthermore, although the firm's time summary states that the total number of hours expended represents time spent by "Attorney and Paralegal combined," the records do not reveal what proportion, if any, of the tasks performed were assigned to a paralegal(s).
Additionally, there are instances of vagueness and "block billing" in the firm's time records. For example, on an unspecified date(s) in November 1999, 15 hours were spent by DeSalvo Harris on legal research. Although the subject matter of the research is described in some detail, no breakdown of the time spent on the various aspects of the research project is provided. Consequently, the entry lacks the requisite specificity. The time records contain similar entries, of 20 and 15 hours respectively, for research conducted on unspecified dates in December 1999. Other examples of vagueness include entries containing such descriptions as "Receipt and review of Order" and "Receipt and review of correspondence." These entries render it difficult for the Court to determine whether or to what extent the work done by these attorneys was duplicative or unnecessary. The deficiencies in the time records submitted by DeSalvo Harris, including vagueness, "block billing," and a failure to specify which of the law firm's personnel performed the various tasks for which fees are sought, warrant a 15% "flat" reduction in the amount of the award.
In addition, approximately 10% of the total number of hours expended by De Salvo Harris was devoted to mere review of the work of co-counsel; moreover, there is no indication that this activity contributed to the value of the litigation. Therefore, a corresponding reduction in the number of hours reasonably expended on the litigation is appropriate.
Based on an hourly rate of $300, which the Court finds reasonable, and taking into consideration the adjustments described above, the Court finds that De Salvo Harris is entitled to attorneys' fees in the amount of $38,430.
DeSalvo Harris also seeks $37,500.33 in expenses. The summary of expenses provided indicates that this amount represents the firm's contribution to the litigation fund. The payments, identified as "assessments," were made in two installments of $14,583.50 each, and one installment of $8,333.33. The total amount of assessments paid is reduced by 28.3% to reflect the overall expense reduction proposed by plaintiffs' counsel, as discussed earlier in this writing. Thus, DeSalvo Harris is entitled to reimbursement for assessments in the amount of $26,887.74.
Accordingly, the Court recommends that DeSalvo Harris be awarded $65,317.74: $38,430 in attorneys' fees and $26,887.74 in expenses. Dyer Shuman, LLP
The law firm of Dyer Shuman, LLP ("Dyer"), located in the state of Colorado, requests a lodestar of $265,494.50 for 685.26 hours of work performed between December 3, 1999, and March 9, 2004. Dyer's submissions indicate that plaintiffs incurred attorneys' fees through work performed by the following law firm personnel: Robert J. Dyer, partner (20.70 hours @ $525 per hour); Kip B. Shuman, partner and member of the EVIC Steering Committee (355.50 hours @ $425 per hour); Jeffrey A. Berens, partner (123.80 hours @ $350 per hour); John M. Martin, associate (25.76 hours @ $325 per hour); and Darby K. Hildreth, associate (159.50 hours @ $325 per hour).
The Court has reviewed the law firm's submissions and has determined that the rate at which each of the firm's attorneys seeks compensation is reasonable. With respect to the number of hours spent on the litigation, a review of the firm's contemporaneous time records reveals instances of vagueness in the descriptions of the work performed by law firm personnel. For example, a number of entries describe the work performed as "review memo," "review recent corres," "document and pleading review" and "work on expert issues." These entries are not sufficiently specific to allow the Court to determine whether the attorney who performed the work spent his or her time effectively. Therefore, a 15% "flat" reduction is warranted in this case.
Additionally, Dyer seeks compensation, at the full hourly rate, for time spent by attorney Kip B. Shuman on travel to and from meetings held in connection with this litigation. Although the records provided do not distinguish travel time from time spent on other activities, the Court finds it reasonable to suppose that approximately one-third of the pertinent hours were spent actually traveling and, therefore, should be billed at a reduced rate. Therefore, taking into account the adjustments appropriate in this case, the Court recommends an award of attorneys' fees to Dyer of $222,482.83.
Dyer also seeks $58,806.35 in expenses. A review of the summary of expenses provided by Dyer indicates that the firm contributed $50,000 to the litigation fund. This payment is identified as an "assessment." As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $35,850) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. Additionally, in accordance with the expense guidelines set forth above, the Court finds that Dyer is entitled to $7,999.41 for all other expenses incurred by the firm. Therefore, Dyer is entitled to $43,849.41 in expenses.
Accordingly, the Court recommends that Dyer be awarded $266,332.23, representing $222,482.83 in attorneys' fees and $43,849.40 in expenses.
Kenneth A. Elan, Esq.
Kenneth A. Elan, Esq. ("Elan") is a sole practitioner with business offices located in the state of New York. Elan requests a lodestar of $13,241.25 for 26.75 hours of work, performed at an hourly rate of $495.
The Court finds the rate charged by Elan, $495 per hour, to be within the range of reasonable fees for an attorney of his experience in this judicial district. The contemporaneous time record submitted by Elan consists of seven entries. Six of the entries fail to provide the date, or even the year, on which the tasks for which compensation is sought were performed. In addition, at least three of the entries fail to provide a breakdown of the time spent on the various tasks described. For example, the record informs that, on an unspecified date, five hours were spent preparing a letter to the court and conferring with other class counsel regarding the letter. Such vagueness and "block billing" generally warrants a reduction in the lodestar amount because the Court is unable to evaluate the reasonableness of the time spent. In this case, a "flat" reduction of 15% is recommended. Elan does not seek reimbursement for expenses.
Accordingly, the Court finds that Elan is entitled to recover $11,255.06 in attorneys' fees.
Fayard Associates
Calvin C. Fayard, Jr., APC ("Fayard"), located in Louisiana, seeks a lodestar of $167,491.25 for 716.75 hours of work performed between January 2000 and December 31, 2003. In a separate submission, Fayard has provided current and historic hourly rates and the number of hours allocated yearly for the attorneys and legal assistants who provided services in connection with this action. The Court finds that the hourly rates charged were, for the most part, reasonable and appropriate. However, the rate at which attorney Calvin C. Fayard billed for his services during 2003, $600, exceeds the maximum fee for a litigation partner in this judicial district. Therefore, a corresponding adjustment in the rate of compensation for the relevant number of hours is warranted.
Additionally, the firm's time records contain vague or perfunctory explanations of the work performed. These entries render it difficult for the Court to determine whether or to what extent the work done by law firm personnel was duplicative or unnecessary. These deficiencies in the time records submitted by Fayard warrant a 15% "flat" reduction in the amount of the award. In addition, approximately 20% of the total number of hours expended by Fayard personnel was devoted to review of the work of co-counsel; moreover, there is no indication that this activity contributed to the value of the litigation. Therefore, a corresponding reduction in the number of hours reasonably expended on the litigation is appropriate. Furthermore, attorney Calvin C. Fayard billed travel time at his full hourly rate. The Court has, therefore, made the appropriate reduction with respect to this portion of the fee request.
Taking into consideration the adjustments described above, the Court finds that Fayard is entitled to attorneys' fees in the amount of $101,616.81.
Fayard also seeks expenses in the amount of $52,102.94. A review of the summary of expenses provided by Fayard indicates that the firm contributed $37,500 to the litigation fund. This payment is identified as an "assessment." As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $26,887.50) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. Additionally, in accordance with the expense guidelines set forth above, the Court finds that Fayard is entitled to $14,402.94 for all other expenses incurred by the firm. Therefore, Fayard is entitled to $41,490.44 in expenses.
Accordingly, the Court finds that Fayard is entitled to $143,107.25: attorneys' fees in the amount of $101,616.81 and $41,490.44 in expenses.
Flanagan, Lieberman, Hofmann Swaim
Flanagan, Lieberman, Hofmann Swaim ("Flanagan"), located in the state of Ohio, seeks a lodestar of $134,072.50, based on the work performed by attorneys James E. Swaim and Richard Hempfling. Specifically, James E. Swaim reports that he expended 499.9 hours on the instant litigation at an hourly rate of $225, while Richard Hempfling reports that he expended 123.4 hours at an hourly rate of $175.
The Court finds that the hourly rates at which these attorneys seek to be compensated are reasonable for this judicial district. With respect to the number of hours spent on the litigation, a review of the time records submitted by this firm reveals instances of "block billing" and vagueness. Examples of vague entries are "Call to ___" and "Meeting with ___" where the name of a client or another attorney is provided, but no additional information is given which would indicate how the activity may have advanced the litigation. Consequently, because a number of entries in the firm's records lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries, a 15% across-the-board reduction of the attorneys' fees requested is warranted in this case.
Additionally, Flanagan seeks compensation for 68.5 hours spent by James E. Swaim on travel to and from certain meetings and conferences held in connection with this litigation. Although the records provided do not distinguish travel time from time spent on other activities, the Court finds it reasonable to suppose that 24 hours were spent actually traveling; therefore, those hours should be billed at a reduced rate. Accordingly, taking into account the adjustments that are appropriate in this case, it is recommended that Flanagan be awarded $111,666.62 in attorneys' fees.
Flanagan also seeks $3,707.16 in expenses. With the exception of a request for $50 as reimbursement for "professional services," the nature of which is not explained, the Court finds that Flanagan's expense request is appropriate and should be granted. Thus, the firm should be awarded $3,657.16 for expenses reasonably incurred in the prosecution of this action.
Accordingly, the Court recommends that Flanagan be awarded $115,323.78, representing $111,666.62 in reasonable attorneys' fees and $3,657.16 in expenses. Futterman Howard, Chtd.
Futterman Howard, Chtd. ("Futterman"), located in the state of Illinois, seeks a lodestar of $56,314 for 155.5 hours of work performed between January 16, 2000 and January 21, 2004. Futterman has submitted time records that enable the Court to determine the nature of the tasks performed and the amount of time expended on those tasks. Each entry lists the attorney, date, time, value, and nature of the work performed. A separate submission provides the hourly rate for each of the attorneys or staff members who worked on the case. The rates of compensation requested by Futterman are within the range of rates that the Court has determined to be reasonable for this action.
In addition, for the most part, the descriptions of the work performed are sufficiently specific to allow the Court to evaluate the reasonableness of the time spent. Moreover, the attorneys and paralegals who worked on the litigation appear to have used their time efficiently. Therefore, the Court recommends that Futterman be awarded $56,314 in attorneys' fees.
The law firm provided a large number of documents in support of its request for reimbursement of expenses. A review of those submissions reveals that the law firm's expenses are reasonable. Therefore, its request for expenses in the amount of $1,238.64 should be granted.
Accordingly, the Court finds that Futterman should be awarded $57,552.64, representing $56,314 in attorneys' fees and $1,238.64 in expenses.
Gardner, Ewing Souza
Gardner, Ewing Souza ("Gardner") seeks a lodestar of $618,320 for 1,836 hours of work performed between August 1999 and January 2003. Gardner's submissions indicate that plaintiffs incurred attorneys' fees through work performed by the following law firm personnel:
C. David Ewing, a member of the Plaintiffs' EVIC Steering Committee who billed his time at an hourly rate of $350, Gary L. Gardner, who also billed his time at the hourly rate of $350, and Damon B. Willis who billed his time at the rate of $150 per hour. The hourly rates at which these attorneys seeks to be compensated are reasonable in the circumstances.
With respect to the number of hours spent on the litigation, a review of the records provided by Gardner reveals that not all of the time for which plaintiffs incurred attorneys' fees was used efficiently. For example, 12 days, at between 5 and 8 hours per day, were spent reviewing one document; 5 hours were spent on a single phone call; 3 hours were spent changing travel plans where time spent making the original plans already had been billed to the plaintiffs; on several occasions, both attorneys traveled to and from conferences in Ohio or New York and, on one occasion, both attorneys and the firm's paralegal all traveled to the same conference. Moreover, travel time, which frequently is not distinguished from time spent on other activities, is billed at the full hourly rates.
Additionally, there are instances of vagueness and "block billing" in the firm's time records. For example, the time records include entries containing such descriptions as "review documents," "review pleadings," "review issues/dictate memos;" also, certain entries indicate blocks of time as large as 20 or 40 hours for which the descriptions are not sufficiently detailed. Consequently, a number of entries in the firm's records lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries.
The deficiencies in the time records submitted by Gardner warrant a 15% "flat" reduction in the amount of the firm's award of attorneys' fees. Additionally, in the absence of any showing that it was reasonable or necessary for more than one member of the law firm to travel to a conference or meeting, a reduction of $18,365 in the fee request is warranted in this case. Furthermore, since travel time is properly billed at half the applicable hourly rate, the Court, estimating the amount of time spent actually traveling, finds that a further reduction of $10,175 in the fee request is in order. Accordingly, the Court finds that Gardner is entitled to attorneys' fees of $497,032.
Gardner also seeks $100,309.27 in expenses. The summary of expenses provided indicates that $75,000 of this amount represents the firm's contribution to the litigation fund. The payments, identified as "miscellaneous," were made in two installments of $25,000 and $50,000, respectively. The total amount of this expense is reduced by 28.3 % to reflect the overall expense reduction proposed by plaintiffs' counsel, as discussed earlier in this writing. Thus, Gardner is entitled to reimbursement for contributions to the litigation fund $63,750.
Additionally, in his declaration in response to SSI's objections to the Fee Application, Lead Counsel Stanley M. Chesley has indicated that the following are to be deducted from Gardner's expense request: $38.16 for "golf expenses," $2,500 for "advertising" and $390 for meals. Furthermore, since duplication of travel has been disallowed, an overall reduction of $5,839 in the amount of travel expenses for which reimbursement is sought is in order. The Court finds that the other expenses identified in Gardner's fee application are reasonable and should be allowed. Therefore, the Court recommends an award of expenses of $80,682.11.
Accordingly, the Court finds that Gardner should be awarded $577,714.11, representing $497,032 in attorneys' fees and $80,682.11 in expenses. Glancy Binkow Goldberg LLP
Glancy, Binkow Goldberg LLP ("Glancy"), located in the state of California, requests a lodestar of $36,658.85 for 86.87 hours of work performed by the firms' attorneys and paralegals during the period November 1999 through March 2004. A separate submission provides the hourly rate at which each attorney and staff member who worked on the case seeks compensation. According to counsel's submission, plaintiffs incurred attorneys' fees for the following law firm personnel: Lionel Z. Glancy (2.4 hours @ $495/hr), Michael Goldberg (47.75 hours @ $475/hr), Robert Perkins (1.5 hours @ $425/hr), Tracy L. Thrower (22 hours @ $425/hr), Dale MacDiarmid (8.7 hours @ $225/hr), Daniel C. Rann (3.1 hours @ $190/hr), Kyaa Heller (1.42 hours @ $180/hr).
The Court finds that the hourly rate sought for the attorneys who worked on this litigation are reasonable. However, the hourly rates at which paralegal time was billed were higher than the maximum rate that the Court has determined to be reasonable for such law firm personnel in this case. Therefore, the Court will apply an hourly rate of $150 for the work performed by Daniel C. Rann and Kyaa Heller.
With respect to the number of hours spent on the litigation, Glancy has submitted contemporaneous time records that enable the Court to determine sufficiently the nature of the tasks performed and the amount of time expended on those tasks. Each entry provides the attorney or paralegal, date, time and nature of the work performed. A review of the records reveals that the attorneys and paralegals used their time efficiently and the descriptions of the work performed are sufficiently specific to allow the Court to evaluate the reasonableness of the time spent. Therefore, taking into account the appropriate reduction in hourly rates for paralegal time, the Court finds that Glancy is entitled to attorneys' fees in the amount of $36,492.25.
Glancy also seeks $2,337.65 in expenses. With the exception of the amount applied to facsimile expenses, which is reduced, in accordance with the guidelines set forth above, by $78, the Court finds that the expenses sought by this law firm are reasonable in the circumstances. Therefore, Glancy is entitled to $2,259.65 for expenses.
Accordingly, the Court finds that Glancy should be awarded $38,751.90: $36,492.25 in attorneys' fees and $2,259.65 in expenses.
Law Offices of E. David Hoskins, LLC
The Law Offices of E. David Hoskins, LLC ("Hoskins") seeks a lodestar of $24,244.25 for 131.11 hours of work performed during the period October 13, 2000, through February 4, 2004, at an hourly rate of $185. Hoskins is located in the state of Maryland,
The Court finds the hourly rate at which Hoskins seeks compensation to be reasonable and appropriate in the circumstances. Additionally, while the contemporaneous time records submitted by Hoskins contain instances of vagueness, the Court finds that these are not so extensive as to warrant a reduction in the number of hours reasonably spent on the litigation by this firm. Therefore, Hoskins is entitled to attorneys' fees in the amount of $24,244.25.
Hoskins also seeks $597.67 in expenses. The Court finds this to be a reasonable request and recommends that it be granted.
Accordingly, the Court recommends an award to Hoskins of $24,841.92: $24,244.25 in attorneys' fees and $597.67 in expenses. Kirby, McInerney Squire, LLP
Kirby, McInerney Squire, LLP ("Kirby"), located in the city and state of New York, requests a lodestar of $341,958.75 for 811 hours of work performed on this litigation.
Kirby has submitted a separate exhibit setting forth, for each attorney and paralegal who worked on this litigation, the number of hours spent and the hourly rate at which each is compensated, as follows: Lewis S. Sandler (356.5 hours @$425/hr), Jeffrey H. Squire (Plaintiffs' EVIC Steering Committee member) (246.5 hours @ $625/hr), Pamela E. Kulsrud (12.25 hours @ $410/hr), James P. Carroll (13.75 hours @ $310/hr), Alice McInerney (7.25 hours @ $575/hr), Roger W. Kirby (3.75 hours @ $625/hr), Daniel Hume (4 hours @ $450/hr), Mark A. Strauss (4 hours @ $360/hr), Senior Paralegal (25.75 hours @ $160/hr), Paralegal (71.75 hours @ $125/hr), Clerk (65.5 hours @ $65/hr).
The hourly rates of compensation requested by Kirby for certain personnel exceed the maximum amounts that the Court has determined are reasonable for this action. Kirby requests an hourly rate of $625 for 246.5 hours of work performed by Jeffrey H. Squire and $625 for 3.75 hours of work performed by Roger W. Kirby. Reductions in the hourly rates billed by these attorneys, to the maximum of $595 for a litigation partner, is warranted. The hourly rates requested for other firm attorneys are reasonable.
Kirby also provided contemporaneous time records for each attorney identified above. To the extent that the records describe adequately the nature of the work performed on this litigation, they indicate that the attorneys' time was efficiently spent. However, the records include entries that are too vague to enable to Court to evaluate the reasonableness of the time spent. For example, there are number of entries containing only the descriptions, "complaint," "revise complaint "review decision," and "research." These deficiencies in the time records warrant a 15% across-the-board reduction of the attorneys' fees requested by the firm.
Furthermore, as the firm acknowledges in its submissions, since paralegals and clerks do not detail their time records, Kirby has provided "computer generated backup" for those employees. However, these records fail to remedy the deficiency because they provide no information regarding the nature of the work performed by the firm's paralegals and clerks. In the absence of any indication of the type of work done or the number of hours devoted to each task performed, the Court is unable to determine whether the time was reasonably spent. Therefore, Kirby's fee request should be reduced by the amount attributed to work by paralegals and clerks, that is, $17,345.25. Taking into account these adjustments to the fee request, the Court recommends that Kirby be awarded $265,182.19 in attorneys' fees.
Kirby also seeks expenses in the amount of $43,960.59. A review of the summary of expenses provided by Kirby indicates that the firm contributed $25,000 to the litigation fund. This payment is identified as "assessments." As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $17,925) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. Additionally, in accordance with the expense guidelines set forth above, the Court finds that Kirby is entitled to $16,269 for all other expenses incurred by the firm. Therefore, Kirby is entitled to $34,194 in expenses.
Accordingly, the Court recommends that Kirby be awarded $299,376.19, representing $265,182.19 in attorneys' fees and $34,194 in expenses. Levin, Fishbein, Sedran Berman
Levin, Fishbein, Sedran Berman ("Levin"), located in the state of Pennsylvania, requests a lodestar of $17,478.75 for 51.75 hours of work performed on this litigation. Levin has submitted a separate exhibit setting forth, for each attorney and paralegal who worked on this litigation, the number of hours spent and the hourly rate at which each is compensated, as follows: Arnold Levin (.75 hours @ $650/hr), Howard J. Sedran (.75 hours @ $545/hr), and Daniel C. Levin (50.25 hours @ $330/hr). The hourly rate of compensation requested by Levin for attorney Arnold Levin exceeds the maximum amount that the Court has determined is reasonable for this action. Levin requests an hourly rate of $650 for .75 hours of work performed by Arnold Levin. A reduction in the hourly rate billed by this attorney, to the maximum of $595 for a litigation partner, is warranted. The hourly rates requested for other firm personnel are reasonable.
Levin has submitted time records that enable the Court to determine the nature of the tasks performed and the amount of time expended on those tasks. Each entry lists the attorney, date, time, and nature of the work performed. For the most part, the descriptions of the work performed are sufficiently specific to allow the Court to evaluate the reasonableness of the time spent. Moreover, the attorneys who worked on the litigation appear to have used their time efficiently. Therefore, the Court recommends that Levin be awarded $17,437.50 in attorneys' fees.
Levin also seeks $466.01 in expenses. The court finds this expense request to be reasonable and recommends that it be granted.
Accordingly, the Court recommends that Levin be awarded $17,903.51: $17,437.50 in attorneys' fees and $466.01 in expenses.
Law Offices of J. Brent Austin
The Law Offices of J. Brent Austin ("Austin"), located in the state of Kentucky, seeks a lodestar of $45,420 for 151.4 hours of work expended on this litigation. Austin has failed to provide an hourly rate at which the work of attorney J. Brent Austin was performed; however, based on the lodestar figure included in plaintiffs' submissions, the Court concludes that the firm billing rate was $300. This is a reasonable hourly rate in the circumstances.
With respect to the number of hours expended on the litigation, J. Brent Austin appears to have used his time efficiently. In addition, the Court finds that the time records submitted by Austin support adequately the number of hours for which the firm seeks compensation. Therefore, Austin is entitled to attorneys' fees in the amount of $45,420.
Austin also seeks expenses in the amount of $249.23. The Court considers this request to be reasonable and recommends that it be granted.
Accordingly, the Court recommends that Austin be awarded $45,669.23, representing $45,420 in attorneys' fees and $249.23 in expenses.
McKernan Law Firm
The McKernan Law Firm ("McKernan"), located in the state of Louisiana, seeks a lodestar of $44,734 for 239.8 hours of work expended on this litigation. McKernan has submitted a separate exhibit describing the number of hours of work performed by each of the firm's attorneys and its paralegal; these are as follows: Joseph J. McKernan (29.5 hours), Scott E. Brady (154.15 hours) and Heather Keller (paralegal) (56.16 hours). McKernan has not indicated the hourly rate at which these individuals seek to be compensated, although it has provided biographical information concerning Joseph J. McKernan and Scott E. Brady. Under the circumstances, the Court finds that while the specific hourly rates that were assigned to each member of the firm have not been provided, these rates are likely to be well below the maximum rate determined to be reasonable in this judicial district.
Additionally, for the most part, the records submitted by McKernan are sufficiently specific to permit the Court to evaluate the nature of the work performed by each member of the firm and to determine whether the time expended on this litigation was reasonably spent. Based on that evaluation, the Court finds that, on average, approximately 30% of the work performed by law firm personnel involved review of the correspondence of co-counsel. Therefore, in the absence of any showing that some value was added thereby to the litigation, a comparable reduction in the amount of attorneys' fees awarded is warranted in this case.
McKernan also seeks $38,496.48 in expenses. A review of the summary of expenses provided by McKernan indicates that the firm contributed $37,500.33 to the litigation fund. These payments, identified as "assessments," were made in two installments, of $8,333.33 and $29,167, respectively. As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $26,887.74) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. Additionally, in accordance with the expense guidelines set forth above, the Court finds that McKernan is entitled to $996.15 for all other expenses incurred by the firm. Therefore, McKernan is entitled to a total of $27,883.89 in expenses.
Accordingly, the Court recommends that McKernan be awarded $59,197.69: $31,313.80 in attorneys' fees and $27,883.89 in expenses.
O'Bryan Baun Cohen Kuebler
O'Bryan Baun Cohen Kuebler ("O'Bryan"), located in the state of Michigan, seeks a lodestar of $53,970 for 179.9 hours of work expended on this litigation. O'Bryan has submitted contemporaneous time records indicating the number of hours of work performed by each of the firm's attorneys; these are as follows: Dennis M. O'Bryan (159.6 hours) and John Drumm (20.3 hours). O'Bryan has not indicated the hourly rate at which these individuals seek to be compensated. Under the circumstances, the Court finds that while the specific hourly rates that were assigned to each member of the firm have not been provided, these rates are likely to be well below the maximum rate determined to be reasonable in this judicial district.
Additionally, for the most part, the records submitted by O'Bryan are sufficiently specific to permit the Court to evaluate the nature of the work performed by each member of the firm and to determine whether the time expended on this litigation was reasonably spent. Based on that evaluation, the Court finds that, on average, approximately 10% of the work performed by law firm personnel involved review of the correspondence of co-counsel. Therefore, in the absence of any showing that some value was added thereby to the litigation, a comparable reduction in the amount of attorneys' fees awarded is warranted in this case.
O'Bryan also seeks $14,839.93 in expenses. Additionally, a review of the summary of expenses provided by O'Bryan indicates that the firm contributed $14,583.50 to the litigation fund. This payment is identified as an "assessment." As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $10,456.37) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. The Court finds that O'Bryan is also entitled to $256.43 for all other expenses incurred by the firm.
Accordingly, the Court recommends that O'Bryan be awarded $59,285.80, representing $48,573 in attorneys' fees and $14,839.93 in expenses.
Oldfather Morris
Oldfather Morris ("Oldfather"), located in the state of Kentucky, seeks a lodestar of $570,587.50 for 2,225.75 hours of work performed between August 1999 and July 2003. Douglas H. Morris, a partner in the firm, was a member of the Plaintiffs' EVIC Steering Committee.
Oldfather has submitted contemporaneous time records indicating, for each attorney and paralegal who worked on this litigation, the date, time, value and nature of the work performed. A review of the records reveals that the rates of compensation requested by Oldfather are within the range of rates that the Court has determined are reasonable for this action. Additionally, although there are some instances of vagueness and "block billing" in the firm's time records, for the most part, these documents enable to the Court to evaluate the reasonableness of the time spent on the litigation. Based on that evaluation, the Court finds that, for the most part, law firm personnel used their time efficiently.
On some occasions, two members of the firm attended the same conference or hearing in connection with this action. However, Oldfather has provided an explanation for this use of its resources and the Court is persuaded that having two members of the firm attend certain events was not duplicative or unnecessary in the circumstances. Nevertheless, as discussed previously, courts in this judicial district generally do not credit travel time at the attorneys' full hourly rate. Therefore, in this instance, to remedy this defect in the firm's assessment of the fees to which it is entitled, the Court finds that a reduction in the lodestar is warranted. Therefore, the Court recommends that Oldfather be awarded $559,887.50 in attorneys' fees.
Oldfather also seeks $136,842.73 in expenses. A review of the summary of expenses provided by Oldfather indicates that the firm contributed a total of $59,094.42 to the litigation fund. These payments, identified as "assessments," were made in two installments, of $9,094.42 and $50,000, respectively. As discussed earlier in this writing, the total amount of assessments for which reimbursement is sought is reduced by 28.3% (to $42,370.70) to reflect the overall reduction in this expense proposed by plaintiffs' counsel. Additionally, in accordance with the expense guidelines set forth above, the Court finds that Oldfather is entitled to $59,855.35 for all other expenses incurred by the firm. Therefore, Oldfather is entitled to a total of $102,226.05 in expenses.
Accordingly, the Court recommends that Oldfather be awarded $662,113.55, representing $559,887.50 in attorneys' fees and $102,226.05 in expenses.
Zoll Krantz
Zoll Krantz ("Zoll") requests a lodestar of $20,722.50 for 59.29 hours of work performed between August 6, 2001, and February 10, 2004.
The hourly rates of compensation requested by Zoll are within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Zoll indicates that it requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 5% of the total number of hours expended by the firm were devoted to this type of activity. Zoll has made no showing that this activity added value to the instant litigation. Therefore, a corresponding reduction in the number of hours reasonably spent by Zoll in the prosecution of this action is warranted.
Zoll also seeks $150.80 in expenses. The Court finds this request to be reasonable.
Accordingly, the Court recommends that Zoll be awarded $19,837.18, representing $19,686.38 in attorneys' fees, and $150.80 in expenses.
John M. Belew
John M. Belew ("Belew") requests a lodestar of $20,700.00 for 69 hours of work performed between March 2000 and January 3, 2004.
Belew's records include one 30 minute entry for March 2000, but do not specify the day on which the work was performed.
The hourly rate of compensation requested by Belew is within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Belew indicates that he requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 20% of the total number of hours expended by Belew were devoted to this type of activity. He has made no showing that this activity added value to the instant litigation. Therefore, a corresponding reduction in the number of hours reasonably spent by Belew in the prosecution of this action is warranted.
Belew also seeks $150 for airfare. However, the records submitted by Belew do not provide any information about the travel he might have undertaken in connection with this litigation. The expense request should be denied, as there is no basis upon which to determine its reasonableness or usefulness to the instant litigation.
Accordingly, the Court recommends that Belew be awarded $16,560.00 in attorneys' fees, and that his application for an award of expenses be denied.
Carey Law Firm
The Carey Law Firm ("Carey") requests a lodestar of $177,523.75 for 536.75 hours of work performed between September 10, 1999, and March 1, 2004.
The hourly rates of compensation requested by Carey are within the range of rates that the Court has determined to be reasonable for this action.
A review of the records submitted by Carey indicates that it billed approximately 30 hours of travel time at the full hourly rates, resulting in attorneys' fees of approximately $11,850. Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of $5,925 is warranted.
Additionally, there are instances of vagueness in the firm's time records. For example, the records submitted by Carey often do not identify the purpose or subject matter of conferences in which its personnel participated. As well, certain entries in the time record contain descriptions, such as "research," that lack detail. Such entries lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries. These deficiencies in the time records submitted by Carey warrant a 10% across-the-board reduction of the attorneys' fees requested by the firm.
Carey also seeks $7,771.13 in expenses. The Court finds this request to be reasonable.
Accordingly, the Court recommends that Carey be awarded $162,210.01, representing $154,438.88 in attorneys' fees, and $7,771.13 in expenses.
Law Office of Tracey Buck-Walsh
The Law Office of Tracey Buck-Walsh ("Buck-Walsh") requests a lodestar of $57,468.75 for 153.25 hours of work between February 5, 2000, and March 21, 2002. The firm is located in Sacramento, California.
The hourly rate of compensation requested by Buck-Walsh is within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Buck-Walsh indicates that it requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 5% of the total number of hours expended by the firm were devoted to this type of activity. Buck-Walsh has made no showing that this activity added value to the instant litigation. Therefore, a corresponding reduction in the number of hours reasonably spent by Buck-Walsh in the prosecution of this action is warranted.
Additionally, Buck-Walsh billed approximately five hours of travel time at the full hourly rate, resulting in attorneys' fees of approximately $1,875. Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of $937.50 is warranted.
There are also instances of vagueness in the firm's time records. For example, the records submitted by Buck-Walsh often do not identify the purpose or subject matter of conferences in which Ms. Buck-Walsh participated. As well, the Court's review of the firm's activities is hindered by the frequent identification of individuals by their initials only, and by the use of other unexplained abbreviations. Consequently, a number of entries in the firm's records lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries. These deficiencies in the time records submitted by Buck-Walsh warrant a 30% across-the-board reduction of the attorneys' fees requested by the firm.
Buck-Walsh also seeks $1,084.69 in expenses. The Court finds this request to be reasonable.
Accordingly, the Court recommends that Buck-Walsh be awarded $38,645.16, representing $37,560.47 in attorneys' fees, and $1,084.69 in expenses.
Hagens Berman
Hagens Berman, L.L.P. ("Berman"), requests a lodestar of $1,013,768.25 for 2,988.2 hours of work performed between November 11, 1999, and March 30, 2004. Steve W. Berman, a partner of the firm, served as co-lead plaintiffs' counsel for the instant EVIC consumer litigation. The law firm is located in Seattle, Washington.
The hourly rates of compensation requested by Berman are within the range of rates that the Court has determined to be reasonable for this action.
The records submitted by Berman indicates that it requests compensation for, among other things, approximately 125 hours of travel time at the full hourly rates, resulting in attorneys' fees of approximately $62,750. Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of $31,375 is warranted.
The firm's records indicate that on two occasions, the firm sent more than one attorney to attend court conferences in New York. In the absence of any showing that such staffing levels were reasonable, only compensation for the time spent by one attorney from the firm should be awarded. In addition, several of the attorney fee charges in firm's records are accompanied by no description whatsoever. These deficiencies warrant reductions in the firm's fee request of $5,500 and $7,293.75, respectively.
There are also instances of vagueness and block billing in the firm's time records. For example, the time records for one of the firm's attorneys indicate that the attorney devoted approximately 170 hours to "opp to mtn to dismiss" during a period of 18 days in October and November, 2000. Similarly, the records indicate, without further description, that another of the firm's attorneys devoted approximately 110 hours to opposition to a remand motion. However, without additional information about the component tasks performed during these 280 hours of attorney time, the records lack the specificity necessary to enable the Court to evaluate the reasonableness of expending such a large number of hours opposing these motions. The Court is mindful that the memoranda submitted on behalf of all plaintiffs' counsel describe generally the novelty and complexity of the legal issues raised in the instant litigation. However, these general statements in the memoranda do not remedy the lack of specificity in the individual time records. These and other instances of vagueness in the time records submitted by Berman warrant a 10% across-the-board reduction of the attorneys' fees requested by the firm.
Berman also seeks $155,309.11 in expenses. This figure includes a contribution to the litigation fund of $100,000, which, for the reason discussed above, should be reduced by 28.3%, to $71,700. In addition, Berman's records state that the firm incurred facsimile expenses of $6,827 at a rate of $1.00 per page. A rate of $1.00 per page is greater than the maximum amount the Court has determined to be reasonable for such an expense. The requested facsimile expenses should be reduced to $1,706.75.
Berman's application for an award of expenses includes $8,216.48 for airfare and $8,872.69 for lodging. However, approximately $2,900 of the requested airfare expenses and $1,100 of the lodging expenses were incurred in order to staff court conferences in New York with a second attorney. Absent a showing that it was reasonable to do so, those amounts should be deducted from the firm's request. Although the records submitted by the firm indicate that some of the other airfare expenses sought by Berman were incurred at rates greater than the maximum amount the Court has determined to be reasonable for this action, it also appears that the firm has not sought reimbursement for all of the airfare charges that it incurred in the prosecution of this action. Under the circumstances, the remaining $5,316.48 the firm seeks for airfare expenses is reasonable. Although it is difficult to determine from Berman's records how many nights of lodging are reflected in the remaining $7,772.69 in hotel charges sought by the firm, this figure reflects lodging charges that exceed the maximum amount determined to be reasonable for this action. In light of the reasonable travel activity reflected in the firms records, an award of $5,000 for hotel expenses would be reasonable. The other expenses included in the firm's application are also reasonable.
Berman originally sought a greater award for air travel, $7,718 of which was for a privately chartered aircraft that provided round-trip transportation for two members of the firm to and from New Jersey, so that they could attend a court conference in New York. The firm subsequently determined that it should be awarded only $500 per passenger for this round-trip travel, and, accordingly, it reduced its request for airfare expenses by $6,718. Additionally, the firm withdrew its request for $3,303 of expenses that were erroneously included in its billing records for this litigation. $2,615.50 of that amount consisted of airfare.
Accordingly, the Court recommends that Berman be awarded $987,755.72, representing $872,639.55 in attorneys' fees, and $115,116.17 in expenses.
Waite, Schneider, Bayless Chesley
Waite, Schneider, Bayless Chesley ("Chesley"), requests a lodestar of $955,711.25 for 2,329.5 hours of work performed between January 6, 2000, and March 31, 2004. Stanley M. Chesley, a partner of the firm, served as co-lead plaintiffs' counsel for the instant EVIC consumer litigation. The firm is located in Cincinnati, Ohio.
The hourly rates of compensation requested by Chesley are within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Chesley indicates that the firm billed approximately 151 hours of travel time at the full hourly rates, resulting in attorneys' fees of approximately $67,500. Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of $33,750 is warranted.
There are also instances of vagueness in the firm's time records. For example, the records submitted by Chesley frequently do not identify the purpose or subject matter of conferences with other counsel. The Court is mindful of Mr. Chesley's responsibility in this litigation for coordinating the activities of class counsel, and of his other work which is described generally in the memoranda submitted on behalf of all plaintiffs' counsel. However, this additional information does not fully remedy the lack of specificity in the individual time records. Accordingly, the instances of vagueness in the time records submitted by Chesley warrant a 5% across-the-board reduction of the attorneys' fees requested by the firm.
Chesley also seeks $201,966.97 in expenses. This figure includes a contribution to the common litigation fund of $125,000, which, for the reason discussed above, should be reduced by 28.3%, to $89,625. The application also includes $5,761.70 in payments to two experts. Since the firm has provided no other information about the experts and the services they might have performed, there is no basis upon which to evaluate the reasonableness of these expenses and their usefulness to the instant litigation. Therefore, the expert expenses should be denied.
Chesley originally sought $207,408.97 in expenses, but subsequently withdrew its application for $5,442.00 in interest charges it incurred in connection with a loan.
The firm's expense application also includes $32,180.84 for airfare and $21,560.05 for hotel expenses. However, some of these expenses were incurred in order to staff certain conferences with more than one attorney. In one instance, the firm sent six individuals to New York. Absent a showing that such staffing levels were reasonable, only the reasonable costs incurred in sending one attorney to attend out-of-town conferences and meetings should be awarded. As well, a number of the airfare and lodging charges that Chesley seeks to recover are significantly greater than those the Court has determined to be reasonable for this action. In accordance with the guidelines set forth above for travel and lodging expenses, and in light of the reasonable travel activity evidenced by the firm's records, the Court recommends awarding Chesley $8,500, reflecting reasonable airfare for 17 round trip flights, and $6,000, reflecting reasonable lodging expenses for 30 nights. The other expenses included in the firm's application are reasonable.
Accordingly, the Court recommends that Chesley be awarded $997,452.57, representing $875,863.19 in attorneys' fees, and $121,589.38 in expenses.
B. Herrington Group Herrington White, PLLC
Herrington White, PLLC ("Herrington"), located in the state of Mississippi, seeks a lodestar of $124,465 for 452.6 hours of work performed between October 1999 and March 2004. Herrington's submissions indicate that work was performed by Brian Herrington, Ben White and Shana Ferguson. The billing rate for work performed by Brian Herrington appears to be $275 per hour. This is a reasonable hourly rate for attorneys in this judicial district. Since hourly rates for the other members of the firm who performed work in connection with this ligation are not provided, however, the hours attributed to them are disallowed.
With respect to the number of hours spent on the litigation, a review of the firm's contemporaneous time records reveals that the attorneys who provided legal services in connection with this litigation used their time effectively. In addition, except for the deficiency noted above, the time records are sufficiently specific to allow the Court to evaluate the reasonableness of the time spent on this action.
Brian Herrington seeks compensation for time spent on travel to and from meetings held in connection with this litigation. Since these hours were billed at the full hourly rate, the Court has made the appropriate reductions in the fees charged for them. Therefore, taking into account the adjustments noted above, the Court finds that Herrington is entitled to $111,110 in attorneys' fees.
In his affidavit submitted in support of the Fee Application, Brian Herrington states that his firm's expenses are included in the submission provided by Barrett Law Office, P.A. Therefore, Herrington's expense request is discussed in connection with that firm.
Accordingly, the Court recommends that Herrington be awarded $111,110 in attorneys' fees.
Lott, Franklin, Fonda Flanagan
Lott, Franklin, Fonda Flanagan ("Lott"), located in the state of Mississippi, seeks a lodestar of $48,775 for 195.10 hours of work performed in connection with this litigation, at an hourly rate of $150, from August 1998 until February 2004. The Court finds that the hourly rate at which attorney Sam Fonda seeks to be compensated is reasonable for this action. Additionally, Lott has submitted time records that enable to the Court to determine the nature of the tasks performed and the amount of time expended on those tasks. A review of these records indicates that attorney Sam Fonda, who worked on this litigation, used his time effectively. Therefore, the Court recommends that Lott be awarded $48,775 in attorneys' fees.
Lott also seeks $199 in expenses. The Court considers this to be a reasonable request and recommends that it be granted.
Accordingly, the Court recommends that Lott be awarded $48,974: $48,775 in attorneys' fees and $199 in expenses.
Barrett Law Office, P.A.
Barrett Law Office, P.A. ("Barrett"), located in the state of Mississippi, seeks a lodestar of $17,550 for 35.10 hours of work performed in connection with this litigation, from April 1999 through February 2004, at an hourly rate of $500. The hourly rate requested for attorney John W. "Don" Barrett is within the range of rates that have been approved as reasonable for this judicial district. Therefore, the Court finds the hourly rate of $500 appropriate in the circumstances.
With respect to the number of hours spent, a review of the records submitted by Barrett indicates that the firm requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 10% of the total number of hours expended by the firm were devoted to this type of activity. Since Barrett has made no showing that some value was added to the litigation by the time spent reviewing the work of co-counsel, a corresponding reduction in the number of hours reasonably spent by Barrett in the prosecution of this action is warranted. Therefore, Barrett is entitled to attorneys' fees in the amount of $15,795.
Barrett also seeks expenses in the amount of $11,615.16. As noted above, the expense summary provided by Barrett includes expenses incurred by the Herrington firm. The Court has reviewed Barrett's submissions and has determined that the expenses sought by those firms represented therein is reasonable in the circumstances. Therefore, Barrett is entitled to $11,615.16 in expenses.
Accordingly, the Court recommends that Barrett be awarded $27,410.16: $15,795 in attorneys' fees and $11,615.16 in expenses.
C. AntiTrust Counsel Milberg, Weiss, Bershad Shulman
Milberg, Weiss, Bershad Shulman, L.L.P. ("Milberg"), requests a lodestar of $1,053,860 for 2,807 hours of work performed between August 11, 1999, and April 28, 2004. Sanford P. Dumain, a Milberg partner, served as lead plaintiffs' counsel for the EVIC antitrust action. The law firm is located in the city and state of New York.
The hourly rates of compensation requested by Milberg for certain personnel exceed the maximum amounts that the Court has determined to be reasonable for this action. Milberg requests hourly rates of $635 and $690 for a total of 4.5 hours of work performed by attorneys Steven G. Schulman and David J. Bershad. In addition, Milberg requests hourly rates ranging from $155 to $180 — and averaging approximately $170 — for approximately 450 hours of routine work that either was or could reasonably have been performed by paralegals or clerks. This work included tasks such as database entry, indexing documents, labeling boxes, and searching for documents. These rates exceed the maximum rates that the Court has determined to be reasonable for such work in this action. Accordingly, reductions of these rates are warranted, and $9,221.25 should be deducted from the fees requested by Milberg. The Court finds the hourly rates of compensation requested for Milberg personnel other than those discussed above to be appropriate under the circumstances.
With respect to the number of hours spent on the litigation, a review of the records submitted by Milberg indicates that the firm billed approximately 6 hours of travel time at full hourly rates, resulting in attorneys' fees of approximately $2,100. Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of $1,050 is warranted. Additionally, the firm's records indicate that on three occasions, the firm sent more than one attorney to attend court conferences in New York. In the absence of any showing that such staffing levels were reasonable, only the time spent by one attorney from the firm should be awarded to the plaintiff, and a corresponding reduction of $6,300 in the firm's fee request is warranted.
There are also instances of vagueness and block billing in the firm's time records. Numerous entries in the firm's time records, representing approximately 525 hours, are accompanied by descriptions such as "research" or "review documents." Such descriptions lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries. Additionally, one twelve-hour entry contains no description whatsoever. These deficiencies in the time records submitted by Milberg warrant a 20% across-the-board reduction of the attorneys' fees requested by the firm.
Milberg also seeks $59,686.05 in expenses. This figure includes $13,450 for "Expert/Consultant Fees," $5,030.33 for "Travel/Meals" and $810.72 for "Secretary/Support Staff Disbursements." No itemization of these expenses is provided. The Court finds that, absent such an itemization, there is no basis upon which to determine the reasonableness of the expenses and their appropriateness for this action. Accordingly, those categories of expenses should not be awarded. The Court finds the other categories of expenses sought by Milberg, such as photocopying, telephone and online research expenses, to be sufficiently routine and sufficiently supported by the firm's overall level of activity as not to require itemization. Those expenses, which total $40,395, should be granted.
Milberg's application erroneously indicates that the amount of expenses it has identified is $59,698.55.
Accordingly, the Court recommends that Milberg be awarded $870,226, representing $829,831 in attorneys' fees and $40,395 in expenses. Law Office of Peter A. Lennon
The Law Office of Peter A. Lennon ("Lennon Firm"), requests a lodestar of $445,050 for 989 hours of work performed between August 23, 1999, and February 18, 2004. The firm also seeks an award of $19,780 for expenses. Mr. Lennon is co-counsel for the antitrust action.
Nearly all of the hours contained in the Lennon Firm's time records are attributable to the following activities: "research" or "review documents," and the activities are billed in large blocks of time that offer no information about what component tasks were performed during those periods. In the plaintiffs' memorandum in reply to the now-withdrawn objections to the instant fee applications, plaintiffs' counsel explain that Mr. Lennon was assigned "the tasks of reviewing and evaluating exactly what evidence was presented in the Tax Court." While this description of Mr. Lennon's assigned tasks provides some additional information about the general nature of Mr. Lennon's work, it does not remedy the lack of specificity in this firm's time records. When considered with the additional information provided in the reply memorandum, the firm's time records remain too vague to provide the Court a basis upon which to determine the reasonableness of the time spent by Mr. Lennon in his assigned tasks.
The Lennon firm has not identified any of the expenses it claims to have incurred in the prosecution of this action. The plaintiffs' reply memorandum states that Mr. Lennon spent 19 weeks in New York in order to review documents. However, without more, this claim does not provide a basis for the Court to evaluate the reasonableness of the time and resources expended by Mr. Lennon while in New York or the benefit that class members might have derived from his efforts.
Accordingly, the Lennon Firm's application for an award of attorneys' fees and expenses should be denied.
Jacobsen Law Offices
The Jacobsen Law Offices ("Jacobsen"), requests a lodestar of $33,162.50 for 76.25 hours of work performed between January 5, 2000, and February 10, 2004.
The hourly rates of compensation requested by Jacobsen are within the range of rates that the Court has determined to be reasonable for this action, and Jacobsen's time records demonstrate that the firm's attorney fee application is reasonable.
Jacobsen also seeks $2,748.10 in expenses. This figure includes $1,324.45 for "Professional Services." The firm does not provide any itemization or description of the professional services utilized, however. Accordingly, there is no basis upon which to determine the reasonableness of such expenses and their appropriateness for this action. Therefore, those categories of expenses should not be awarded. The Court finds the other categories of expenses sought by Jacobsen, such as photocopying and telephone expenses, to be sufficiently routine and sufficiently supported by the firm's overall level of activity as not to require itemization. Those expenses, which total $1,423.65, should be granted.
Accordingly, the Court recommends that Jacobsen be awarded $34,586.15, representing $33,162.50 in reasonable attorneys' fees, and $1,423.65 in expenses.
Robert I. Lax Associates
Robert I. Lax Associates ("Lax"), requests a lodestar of $6,633.75 for 15.25 hours of work performed between November 1, 2002, and March 9, 2004.
The hourly rates of compensation requested by Lax are within the range of rates that the Court has determined to be reasonable for this action, and Lax's time records demonstrate that the firm's attorney fee application is reasonable.
Lax also seeks $16.65 in postage and telephone expenses. The Court finds this expense application to be reasonable, given the firm's level of activity in prosecuting this action.
Accordingly, the Court recommends that Lax be awarded $6,650.40, representing $6,633.75 in reasonable attorneys' fees, and $16.65 in expenses.
Steinberg, Fineo, Berger Fischoff
Steinberg, Fineo, Berger Fischoff ("Steinberg") requests a lodestar of $4,165 for 9.8 hours of work performed between February 4, 2000, and May 6, 2004.
The work reflected in Steinberg's billing records consists entirely of the receipt and review of materials, much of which was prepared by other class counsel. The materials submitted in support of the firm's application do not indicate how, if at all, such work advanced the instant ligitation.
Accordingly, Steinberg's application for an award of attorneys' fees should be denied.
D. Barnow Associates Barnow and Associates
Barnow and Associates, P.C. ("Barnow") requests $177,312.50 for 440.50 hours of work performed between June 26, 2000, and February 29, 2004. Ben Barnow, the principal of the firm, served as special counsel to the class for remand issues and as state subclass counsel. The law firm is located in Chicago, Illinois.
The hourly rates of compensation requested by Barnow are within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Barnow indicates that it requests compensation for, among other things, time Mr. Barnow spent traveling to and from New York City on three occasions, for court conferences. The Court finds it reasonable to assume that for each trip, at least six hours were devoted to travel between Chicago and New York City. At Mr. Barnow's full hourly rate of $500 per hour, 18 hours of travel time would result in attorneys' fees of $9,000 Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of half that amount, $4,500, is warranted.
There are also instances of vagueness in the firm's time records. For example, the records submitted by Barnow frequently do not identify the purpose or subject matter of conferences with other counsel. Consequently, a number of entries in the firm's records lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries. These deficiencies in the time records submitted by Barnow warrant a 15% across-the-board reduction of the attorneys' fees requested by the firm.
Barnow also seeks $27,124.25 in expenses. This figure includes a contribution to the common litigation fund of $16,666.67, which, for the reason discussed above, should be reduced by 28.3%, to $11,950. Also included in this expense figure is $1,750 for airfare, $1,565.45 for lodging, and $419.70 for meals. Barnow has submitted no itemized records for these expenses. However, since the records submitted by Barnow indicate that Mr. Barnow took three trips to New York City for one-day conferences, the Court finds that an award of $1,500 for airfare, $600 for lodging, and $300 for meals is reasonable. In addition, Barnow's records state that the firm incurred facsimile expenses of $5,023, at a rate of $1.00 per page. A rate of $1.00 per page is greater than the maximum amount the Court has determined to be reasonable for such an expense. The requested facsimile expenses should be reduced to $1,255.75. Accordingly, the Court finds that Barnow should be awarded $17,305.18 for expenses reasonably incurred in the prosecution of this action.
Accordingly, the Court recommends that Barnow be awarded $164,195.81, representing $146,890.63 in attorneys' fees, and $17,305.18 in expenses.
Edgar Law Firm
Edgar Law Firm, L.L.C. ("Edgar") requests a lodestar of $20,230 for 159.9 hours of work. Edgar submitted contemporaneous time records for only 18.6 hours of this work, which was performed between October 4, 2002, and February 1, 2003.
The hourly rate of compensation requested by Edgar is within the range of rates that the Court has determined to be reasonable for this action.
Edgar has not submitted contemporaneous time records for 141.3 hours of the work it claims that it performed in connection with this litigation, representing attorneys' fees of $31,587.50. This portion of Edgar's attorneys' fees application should be denied.
The 18.6 hours of hours of work for which Edgar has submitted contemporaneous time records included 7.8 hours of conferences whose purpose and subject matter are not identified. Consequently, the records lack the specificity necessary to enable the Court to determine the reasonableness of the 7.8 hours of conferences and their usefulness to the instant litigation. These deficiencies in the time records submitted by Edgar warrant a 40% across-the-board reduction of the attorneys' fees requested by the firm for the hours that it has documented with contemporaneous time records.
Edgar also seeks $531.52 in expenses. This figure includes $181.04 for "Travel (transportation, hotel, meals)." However, the records submitted by Edgar do not itemize this category of expenses or even indicate what travel its personnel undertook in connection with this litigation, if any. Edgar's expense request also includes $25 of "Misc." that is without further identification or explanation. The travel and miscellaneous expenses should be denied, as there is no basis upon which to determine their reasonableness or usefulness to the instant litigation. The Court finds the other categories of expenses sought by Edgar, which total $325.48, to be sufficiently routine and sufficiently supported by the firm's overall level of activity as not to require itemization.
Accordingly, the Court recommends that Edgar be awarded $4,105.48, representing $3,780 in attorneys' fees, and $325.48 in expenses.
Harold B. Gold
Harold B. Gold, P.C. ("Gold") requests a lodestar of $105,700 for 302 hours of work performed between May 8, 2000, and December 30, 2003. The law firm is located in Garland, Texas.
The hourly rate of compensation requested by Gold is within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Gold indicates that it billed approximately 25 hours of travel time at the full hourly rate, resulting in attorneys' fees of approximately $8,750. Since courts in this judicial district generally do not credit travel time at the full hourly rate, the Court finds that a reduction of $4,375 is warranted.
Gold also seeks $24,859.13 in expenses. This figure includes a contribution to the common litigation fund of $16,666.67, which, for the reason discussed above, should be reduced by 28.3%, to $11,950. Also included in this figure is $225 in attorneys' fees for a "contract attorney." However, Gold has not submitted contemporaneous time records for — or any other information about — this attorney's work. Therefore, $225 should be deducted from Gold's request for expenses. In addition, Gold requests $250 for "Professional Services." No identification or itemization of this category of expenses is provided. The Court finds that, absent such an itemization, there is no basis upon which to determine the reasonableness of such expenses and their appropriateness for this action. Accordingly, $250, representing Professional Services, should be deducted from Gold's expense application.
Gold's expense application includes $3,487.63 for airfare and $3,118.72 for lodging. However, most of the entries in the itemized list of expenses Gold has submitted in support of this application include only a dollar amount, unaccompanied by a description of the nature or purpose of the expenditure. In particular, the records identify only two of the entries as representing airfare — and the sum of those entries is significantly less than $3,487.63. Although the expense records are more complete with respect to hotel charges, some of those charges were incurred during periods of time (e.g., December 2002) for which the firm's time records reflect no hours of work. In light of the incomplete and vague expense records pertaining to airfare and hotel expenses, the Court finds that an award of $2,000 for airfare and $1,000 for lodging is reasonable, since Gold's time records indicate that Mr. Gold took four trips to New York City for a total of five days of court conferences and settlement negotiations. Gold's application for $224.20 in meal expenses in connection with these trips is reasonable. The Court finds the other categories of expenses sought by Gold to be sufficiently routine and sufficiently supported by the firm's overall level of activity as not to require itemization. Accordingly, the Court finds that Gold should be awarded $14,061.11 for expenses reasonably incurred in the prosecution of this action.
Accordingly, the Court recommends that Gold be awarded $115,386.11, representing $101,325 in attorneys' fees and $14,061.11 in expenses.
Law Office of D. Brent Lemon
The Law Office of D. Brent Lemon ("Lemon") requests a lodestar of $101,400.00 for 312 hours of work performed between May 1, 2000, and April 29, 2003.
The hourly rate of compensation requested by Lemon is within the range of rates that the Court has determined to be reasonable for this action.
While the time records submitted by Lemon contain instances of vagueness, the Court finds that these are not so extensive as to warrant a reduction in the number of hours reasonably spent on the litigation by this firm. However, a review of these records indicates that the firm requests compensation for, among other things, time spent reviewing the work of other plaintiffs' counsel. Specifically, the records reveal that approximately 5% of the total number of hours expended by the firm were devoted to this type of activity. Lemon has made no showing that this activity added value to the instant litigation. Therefore, a corresponding reduction in the number of hours reasonably spent by Lemon in the prosecution of this action is warranted.
Lemon also seeks $19,275.05 in expenses. This figure includes a contribution to the common litigation fund of $16,666.67, which, for the reason discussed above, should be reduced by 28.3%, to $11,950. Lemon's expenses also include $728.01 for "Professional Services" and $1.75 for "Travel (Transportation, Hotels and Meals)." No further itemization or description of these expenses is provided. The Court finds that, absent such an itemization, there is no basis upon which to determine the reasonableness of the expenses and their appropriateness for this action. Accordingly, those categories of expenses should not be awarded. The Court finds the other categories of expenses sought by Lemon, such as photocopying, telephone and online research expenses, to be sufficiently routine and sufficiently supported by the firm's overall level of activity as not to require itemization. Those expenses should be granted. Accordingly, the Court finds that Lemon should be awarded $13,828.62 for expenses reasonably incurred in the prosecution of this action.
Accordingly, the Court recommends that Lemon be awarded $110,158.62, representing $96,330 in attorneys' fees and $13,828.62 in expenses.
Vahldiek Cano Petroski
Vahldiek Cano Petroski ("Petroski") requests a lodestar of $52,400 for 131 hours of work performed between October 18, 2000, and May 20, 2003.
The hourly rate of compensation requested by Petroski is within the range of rates that the Court has determined to be reasonable for this action.
With respect to the number of hours spent on the litigation, a review of the records submitted by Petroski indicates that it requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 10% of the total number of hours expended by the firm were devoted to this type of activity. Petroski has made no showing that this activity added value to the instant litigation. Therefore, a corresponding reduction in the number of hours reasonably spent by Petroski in the prosecution of this action is warranted.
Accordingly, the Court recommends that Petroski be awarded $47,160, representing its reasonable attorneys' fees.
Law Office of Rick Corley Fairbanks and Lindsey Law Offices of J.D. Johnson Law Offices of Frank Belhasen
The Law Office of Rick Corley ("Corley"), Fairbanks and Lindsey ("Fairbanks"), the Law Offices of J.D. Johnson ("Johnson") and the Law Offices of Frank Belhasen ("Belhasen") have submitted contemporaneous time records that include a number of curiously identical entries. For example, each of the three sets of records — Corley and Fairbanks jointly submitted a single set of time records — includes: (a) one hour on January 24, 2002, devoted to "Review letters, P. Friedman, B. Barnow"; (b) one hour on January 23, 2003, devoted to "Review of order of Hon. R. Berman, review file, letter to client"; and (c) one hour on July 15, 2003, devoted to "E-mail from co-counsel, letter to client, letter to co-counsel". Johnson's records and those of Corley/Fairbanks indicate that on February 14, 2001, each devoted 1.5 hours to "Prepare and file Pro Hoc [sic] Vice for Pete Petroski." The formatting of the three sets of records, as well as other notations appearing on each of them, suggest that these firms may have maintained and/or prepared their time records jointly. Nevertheless, none of the respective firms has provided an explanation of the duplicate entries discussed above.
The records submitted by the firms suffer from several other deficiencies. A significant majority of the entries on each set of records lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries. Additionally, the firms each seek compensation for time spent reviewing the work of other class counsel, which courts in this judicial district generally do not award. Belhasen's attorney fee application is also not supported by an affidavit or any other competent evidence attesting to its accuracy.
In light of these deficiencies, the attorney fee applications of Belhasen, Corley, Fairbanks and Johnson should be denied. Belhasen's application for expenses should also be denied.
Corley and Fairbanks also jointly seek $383.90 in expenses. The Court finds this request to be reasonable and recommends that it be granted.
E. Murphy Law Firm Murphy Law Firm
The Murphy Law Firm ("Murphy") has submitted contemporaneous time records for 67.7 hours of work performed between March 2000 and January 3, 2004. The firm provides neither the hourly rate(s) at which its work was performed, nor a proposed lodestar figure from which such a rate might be derived. In the absence of such information, the firm should be compensated at a rate of $150 per hour.
Murphy's records include one 15.5-hour entry for March 2000, but do not specify the day on which the work was performed.
With respect to the number of hours spent on the litigation, a review of the records submitted by Murphy indicates that it requests compensation for, among other things, time spent reviewing the work of other class counsel. Specifically, the records reveal that approximately 20% of the total number of hours expended by the firm were devoted to this type of activity. Murphy has made no showing that this activity added value to the instant litigation. Therefore, a corresponding reduction in the number of hours reasonably spent by Murphy in the prosecution of this action is warranted.
There are also instances of vagueness and incomplete entries in the firm's time records. For example, 6.5 hours of work performed on April 17, 2000, is described only as "Review and research." Another entry, representing 8.5 hours of work, does not indicate when the work was performed. Such descriptions lack the specificity necessary to enable the Court to determine the reasonableness of the hours billed in those entries. These deficiencies in the time records submitted by Murphy warrant a 20% across-the-board reduction of the attorneys' fees for the firm.
Murphy also seeks $100 in expenses. The Court finds this request to be reasonable.
Accordingly, the Court recommends that Murphy be awarded $6,599.20, representing $6,499.20 in attorneys' fees and $100 in expenses.
V. RECOMMENDATION
For the reasons set forth above, I recommend that plaintiffs' counsel be awarded $6,405,415.61: attorneys' fees in the amount of $5,652,271.36 and expenses in the amount of $753,144.25.
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Lead Counsel Stanley M. Chesley shall provide a copy of this Report and Recommendation to all other counsel in this case.
VI. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, United States District Judge, 40 Centre Street, Room 201, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).