Boykins v. Alabama Brief and Argument of Respondent

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 30,034

ALEX CLARK, JOHN T. MAGEE 
and ROBERT TURNER, et al.,

Plain tiffs-Appellees,
v.

AMERICAN MARINE CORPORATION,
Defendan t-Appellant.

Appeal from the United States District Court 
for the Eastern District of Louisiana

BRIEF FOR PLAINTIFFS-APPELLEES

LOLIS E. ELIE 
Room 1110 
344 Camp Street 
New Orleans, Louisiana 70130

A. M. TRUDEAU
1821 Orleans Avenue
New Orleans, Louisiana 70146

ROBERT BELTON
216 West Tenth Street 
Charlotte, North Carolina

JACK GREENBERG
WILLIAM L. ROBINSON
FRANKLIN E. WHITESYLVIA DREW
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellees



TABLE OF CONTENTS

Faae
Counter Statement of the Issue Presented for Review . . .  1

Counter Statement of the C a s e ..........................  1

Argumen t:
I. Introduction .................................. g

II. Counsel Fee Awards to Successful Plaintiffs 
in Title VII Actions May Not Be Denied,
Limited or Otherwise Reduced Because Some
or All of Their Counsel Were Affiliated
with a Legal Aid Organization..................  7

III. Appellees' Attorneys' Efforts to Settle This 
Case Without Litigation Were Earnest and 
Reasonable and Were Unsuccessful Due Only to 
the Disinterest of Appellant in Further 
Settlement Negotiation.........................  1 5

IV. The Plaintiffs' Estimate of Time and Value 
of Their Services Were Reasonable in the 
Circumstances of This Case......... ............

V. The District Court Did Not, on This Record,
Abuse Its Discretion by Allowing Costs.........  24

Conclusion............................................  26
Certificate of Service ............................  27

Table of Cases:

Bowe v. Colgate, 272 F. Supp. 332 (S.D. Ind. 1967), 
reversed in part on other grounds, F.2d
61 CCH Lab. Cas. 5 9326 (7th Cir. 1969) . .~T\ . . 10

Broussard v. Schlumberger Well Services, No. 68-H-215
(S.D. Texas, Aug. 4, 1970)........................  H

Carter v. Hoit-Williamson Mfg. Co., 62 CCH Lab. Cas.
H 9436 (E.D. N.C. 1969)   n

Cheatwood v. South Central Bell Telephone and
Telegraph Company, ___ F. Supp. , 60 CCH Lab.
Cas. f 9299 (M.D. Ala. 1969) . . . 10

1



Table of Cases Cont'd) Page

Chicago Sugar Co. v. American Sugar Co., 176 F 2d 1
(7th Cir. 1949)........................ ‘.........24.25

Clarke v. American Marine Co., 304 F. Supp. 603
(E.D. La. 1969) ....................   2

Culpepper v. Reynolds Metals Co., No. 12,179 (N D
Ga., August 13, 1970) . . ...............] ' 1 1

Dewey v. Reynolds Metals, 300 F. Supp. 709 (W D
Mich. 1969).......................................... X1

Dobbins v. Electrical Workers (IBEW) Local 212
61 L.C. f 9327 (S.D. Ohio 1969)................... 7,8,13

Dobbins v. IBEW. Local 212, 292 F. Supp. 413 (S DOhio 1 9 6 8 ) ........  * *..............................................  10
Garner v. E. I. duPont, 60 CCH Lab. Cas. f 9300

(W.D. Ky. 1969)..................  * ..........  n

Jenkins v. United Gas, 400 F.2d 28 (5th Cir. 1968) . 10,12,20
Johnson v. Seaboard Airline Railroad Co., 405 F 2d

645 (4th Cir. 1968)................ .. . ! . g
Long v. Georgia Kraft Co., 62 CCH Lab. Cas. I 9437

(N.D. Ga. 1970).............. ..
Miller v. Amusement Park Enterprises, Inc., p 2d

--- (No. 27.529, 5th Cir., May 13, 19707“ . ] 6,13,14,23
Newman v. Piggie Park Enterprises, 390 U.S 400

(1968) ......................................  6,9.10.12
Petway v. American Cast Iron Pipe Co., 411 F.2d 998

(5th Cir. 1969).............................  1X

Quarles v. Philip Morris, Inc., 279 F. Supp. 505
(E.D. va. 1968).................    10>24

Richards ^Griffith Rubber Mills. 300 F. Supp. 338
• • • • • • • • 11*19

Sprpgls v. United^Airlines, Inc.. 308 F. Supp. 959
........ * * • • • • • •  1 1

United States v. Local 189, UPP., 301 F. Supp. 906,
60 CCH Lab. Cas. f 9247 (E.D. La. 1969). . . . .  i0,24

i i



Statutes: Page
28 U.S.C. § 1920 ........................
42 U.S.C. § 1981, Civil Rights Act of 1870
42 U.S.C. §§ 2000-e et seq., Civil Rights Act of 

1964, Title VII . . ......................

Other Authorities;
Civil Rights Bill of 1963, H.R. 7152, 8 8th Conq., 

1st Sess. (1963) ..............
Rule 54, F.R.C.P.........

in



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 30,034

ALEX CLARK, JOHN T. MAGEE 
and ROBERT TURNER, et al.,

Plaint iffs-Appellees,
v.

AMERICAN MARINE CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court 
for the Eastern District of Louisiana

BRIEF FOR PLAINTIFFS-APPELLEES

COUNTER STATEMENT OF THE ISSUE 
PRESENTED FOR REVIEW

Whether the district court erred in its determination of 
the proper amount of attorneys' fees to be awarded as provided 
by Title VII of the 1964 Civil Rights Act.

COUNTER STATEMENT OF THE CASE

This is an appeal from a judgment of the United States 
District Court for the Eastern District of Louisiana, the 
Honorable Alvin B. Rubin, entered on April 28, 1970, awarding



$21,974.51 in counsel fees and costs to appellees (plaintiffs 
below). The opinion ol the court dealing with fees and costs
is at. A. 72-81 and ___ F. Supp. ____. The opinion and order
of the court with respect to the merits of the proceeding—  
which are not challenged in this appeal— are reported at A. 40- 
68 and 304 F. Supp. 603 (E.D. La. 1969).

Appellees filed this action on February 4, 1966, on their 
own behalf and as a class action on behalf of all other blacks 
similarly situated alleging several violations of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000-e et seq. and the Civil 
Rights Act of 1870, 42 U.S.C. 1981. The complaint alleged, inter 
alia, that all three individual plaintiffs had been discharged 
and refused reemployment solely on account of their race; that 
defendant had been and was still engaged in a pattern of dis­
criminatory hiring and promotional practices; and that restroom 
and drinking facilities were segregated (A. 4-6).

Appellant, which operates a shipyard in the city of New 
Orleans filed an answer denying the essential allegations of 
the complaint (A. 11-12). There followed extensive pre-trial 
discovery through numerous sets of interrogatories, depositions 
and copying of company records. The matter was tried in January 
1969 and on September 26 the court entered detailed findings of 
fact and an opinion in which it found (A. 40-63):

1. That two of the three named plaintiffs had been 
discharged on account of their race;

2. That the company followed a discriminatory 
pattern in initial classification by classifying

2



unskilled whites as helpers and unskilled blacks 
as laborers; that two lines of progression were 
therefore formed; that unskilled whites had the 
opportunity to progress to the best paying

jobs but unskilled blacks were limited 
to particular low paying jobs;

3. That the company discriminated in its recruitment 
policy since under such policy knowledge of 
vacancies in better paying jobs was afforded 
only to whites;

4. That the company discriminated in the provision 
of instructional opportunities in that it pro­
vided instruction in '■ tacking1'—  a skill that was 
vital to progressing to the best paying jobs—  
to whites only.

On November 9, 1969, the court entered a comprehensive 
order enjoining appellant from continuing to engage in the above 
practices and requiring that the company undertake a number of 
remedies to undo past discriminatory practices. The latter 
included, .inter alia, an order that Turner and Magee be offered 
reemployment with seniority credit; that no new or vacant 
helper or tacker position be filled from outside the plant 
until each black person then employed was given an opportunity 
to bid for and transfer to such jobs; that transfers were to 
be effected without decrease in the employee's hourly rate of 
pay and without affecting his seniority rights or employment 
benefits; and that training in particular jobs was to be

3



afforded blacks on the same basis as had been available to 
whites (A. 64-68).

In his September 26, 1969, opinion, Judge Rubin had found 
that plaintiffs— appellees here— were entitled to reasonable 
attorneys' fees in accordance with Section 706(k) of Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) In 
an attempt to avoid the necessity for a formal hearing on fees 
plaintiffs' attorneys prepared a proposed statement of fees 
and costs which it forwarded to respondents by letter dated 
December 1 1 , 1969. The fees were deliberately understated 
with the hope that a quick agreement might be reached. The 
offer was rejected outright by appellant (A. 116-117) and the 
court fixed February 9, 1970, for a hearing on the proper 
amount of the award. At the February 9, 1970, hearing attorneys 
for plaintiffs filed itemizations of $27,130 in attorneys' fees 
and $1,914.51 in costs for a total of $29,044.51 (A. 69-71).

At the hearing counsel for plaintiffs (appellees here) 
introduced evidence as to the amount of hours spent and, by use 
of an expert, the basis for the hourly rates included. The 
company, appellant, was permitted to introduce into evidence—

!_/ Section 706 (k) provides:
(k) in any action 

title the court, in it 
the prevailing party, 
or the United States, 
fee as part of the cos 
and the United States 
the same as a private

or proceeding under this s discretion, may allow 
other than the Commission a reasonable attorney's 
ts, and the Commission 
shall be liable for costs person.

4



compromise—  the .statement of foes and coats transmitted 
December 1 1 , 1969. which totaled $21,314.51 ($19,400 fees, 
$1,914.51 costs (A. 131)).

Appellant attempted to introduce evidence which purportedly 
would show that prior counsel for plaintiffs— not present
counsel who conducted the discovery and tried the case_had,
by unreasonable demands, blocked an early settlement of the 
matter. The evidence was excluded by Judge Rubin at that time 
(A. 165). Subsequently, however, he scheduled a new hearing 
and on April 7, 1970, appellant was permitted to make an offer
of proof and to enter into the record any such evidence (A. 171- 
188) .

On April 28, 1970, the court entered an opinion and order 
awarding $20 ,000 in counsel fees and $1,914.51 in costs for a 
total of $21,914.51 (A. 72-81).“ The allocation for fees was 
substantially the same as that transmitted to appellant on 
December 1 1 , 1970. This appeal is from that order.

S E S S T t S ^ S i . S S ? ? ! .  A P P eU 6 e S  S t i p U l a t e  that P ^ e r

5



ARGUMENT

I.
Introduction

Appellant concedes, as it must, that an award of attorneys' 
fees in suits under Title VII should be the rule rather than 
the exception. Cf. Newman v. Piggie Park Enterprise*. 390 
U.S. 400 (1968); Miller v. Amusement Park Enterprises. Inc..
---- F* 2d ---- (No. 27,529, 5th Cir., May 13, 1970). its only
argument is that special circumstances exist which require 
that the fees awarded be disallowed totally or reduced. The
special circumstances to which it adverts may be summarized 
as follows:

1. That no award should be made because some of the 
attorneys for the plaintiffs were on the staff of 
the NAACP Legal Defense Fund, Inc.;

2. That counsel for the plaintiffs blocked settle­
ment by unreasonable demands; and

3. That the award by the court is too high because 
lawyer time was exaggerated by plaintiffs- 
appellees and because plaintiffs' counsel were 
not "veteran attorneys."

Each of these points will be shown to have no basis in fact or 
law.

6



II.
gounaojLFce__ Awards to Successful Plaintiffs
"f ,Tltle " -1' Acti°ns May Not "Be Denied,TIm^ j^ed °r Otherwise Reduced Because Some n r ~ n  
£f Tneir counsel Were .Affiliated' with a t.^TT 
Aid Organization. ------**—

Plaintiffs below were represented in this action by A. M. 
Trudeau and Lolis Elie, members of the Louisiana bar and pri­
vate practitioners, and by Robert Belton and Franklin E.
White, members of the New York bar, practicing with the NAACP 
Legal Defense and Education Fund, InC. and admitted pro hac 
vice. Mr. Elie and Mr. White assumed major responsibility for 
the case after its initial stages in 1966.

Appellant contends that Judge Rubin's award should be 
overturned or reduced because Mr. Belton and Mr. White were 
salaried employees of the Fund and because of the possibility 
that the Fund might share in the award. As authority for this 
proposition they rely on dicta in Dobbins v. Electrical Workers 
jlBEW) Local 212, 61 L.C. 19327 (S.D. Ohio 1969), that ''[i]f 
the plaintiff is bound by a contract of 'dispositions' [of 
attorneys' fees] to a non-licensed recipient, this Court would 
hold the fact to be a 'special circumstance' that would render 
the award unjust (to any such extent)." 61 L.C. 59328.

But the "non-licensed recipient" referred to in Dobbins 
was the National Association for the Advancement of Colored 
People, which, the court noted, holds no license to practice law 
as an organization, but which had furnished the services of one 
of its New York employees in prosecuting the case. The situation

7



here is much different. The organizational assistance rendered 
local counsel in this case was not from the NAACP but from the 
NAACP Legal Defense and Educational Fund, Inc., a completely 
separate, individually chartered, charitable, non-membership, 
legal organization dedicated to the protection of the rights 
of blacks and other minorities through the judicial process.
It employs only lawyers and clericals. It is, in effect, a 
civil rights law firm, composed of 25 attorneys licensed to 
practice law. its charter was approved by a New York State 
Court, authorizing the organization to serve as a legal aid 
society. Quite clearly the Legal Defense Fund falls outside 
the Dobbins definition of a "non-licensed recipient." And there
is no reason why it should not share in fees in the same manner 
as with other law firms.

There are, however, much more important reasons, some 
touching the long-term viability of the Act,which require that 
the limitation suggested in Dobbins and advocated by appellant, 
be rejected.

The statutory grant of counsel fees in civil rights cases 
goes beyond the purpose of such awards as part of the court's 
general equity power to make an individual plaintiff whole.
The United States Supreme Court articulated in Newman v. Pigqie 
— Enterprises, supra, the Congressional intent that an indi­
vidual prevailing in such a suit "does so not for himself alone

8



but also as a 'private attorney general,• vindicating a policy 
that Congress considered of the highest priority." 390 U.S.
400, 402 (1968).

The legislative history of Title VII and the radical 
changes that occurred in this title in the course of its legis­
lative process make clear the fact that Congress intended this 
result in Title VII suits as well.

As originally presented to Congress and passed by the 
House, the enforcement procedures of Title VII were similar to 
those in the National Labor Relations Act and would have estab­
lished a powerful commission similar to the National Labor 
Relations Board.

Not only would the commission have power to investigate and 
conciliate, but it would have the right to go to court where 
voluntary compliance was unsuccessful. Private persons were 
not permitted to file civil actions except in limited circum­
stances, and then only with the approval of the commission.^

As finally enacted, however, Title VII placed enforcement 
in the federal courts rather than an administrative agency. As 
such the enforcement of the Act was turned "inside out" and it 
is left primarily to the aggrieved person to enforce his right 
in a civil action. See Johnson v. Seaboard Airline Railroad Co.. 
405 F.2d 645 (4th Cir. 1968). To the extent that universal 
voluntary compliance was not achieved, Congress saw widespread

1 st slss?1a 9 6 3 K htS 8 1 1 1 °f 1963, H-R- 7152' 88th Cong-'

9



use of the courts to insure elimination of discrimination in 
employment

Congress attempted to cushion the impact of altering 
Title VII enforcement from administrative procedures to requir­
ing private judicial initiative, by specifically providing for 
the allowance of attorney's fee. As the Supreme Court stated 
in Newman v. Piggie Par*., supra, "It was evident that enforce­
ment would prove difficult and the nation would have to rely
in part upon private litigation as a means of securing broad 
compliance with the law."

An assurance that counsel's fee would be available to a 
prevailing party necessarily would encourage private attorneys 
to take on this burden. The attorney fee provision is there­
fore a key feature in rendering Title VII enforcement procedures 
workable. The cases also recognize this principle. Jenkins v. 
United Gas, 400 F.2d 28 (5th cir. 1968), states, for example 
that in such cases "the individual, often obscure, takes on the 
mantle of the sovereign." Thus counsel fees have been awarded 
in the numerous Title VII cases: Quarles v, Philip Morris m e
279 F. Supp. 505 (E.D. Va. 1968); Dobbins v. IBEW. Local 217 
292 F. Supp. 413 (S.D. Ohio 1968): United states v. Local 189- 
UPP. 301 F. Supp. 906, 60 CCH Lab. Cas. , 9247 (E.D. La. 1969); 
Bowe v. Colgate, 272 F. Supp. 332 (S.D. Ind. 1967), reversed in
part on other grounds, ___ F.2d ___, 61 CCH Lab. Cas. , 9326
(7th Cir. 1969): Cheatwood v. South Central Bell Telephone 
Telegraph Company, --- F. Supp. ___, 60 CCH Lab. Cas. g 9299

T5thS“ rfe" & S j'.V - United na" CSffiSBtiSn. 400 F.2d 28. „. 1

10



(M.D. Ala. 1969); Richards v. Griffith Rubber Mills. 300 F.
Supp. 338 (D. Ore. 1969) (attorneys' fees although no relief 
issued; Garner v. E. I. duPont, 60 CCH Lab. Cas. * 9300 (W.D.
Ky. 1969); Petway v. American Cast Iron Pipe Co.. 411 F.2d 998 
(5th Cir. 1969); Carter v. Hoit-Williamson Mfa. Cn.. 62 CCH 
Lab. Cas. H 9436 (E.D. N.C. 1969); Long v. Georgia Kraft Co..
62 CCH Lab. Cas. I 9437 (N.D. Ga. 1970); Culpepper v.
Metals Co., No. 12,179 (N.D. Ga., August 13, 1970); Broussard 
V- Sehlumberger Well Services. No. 68-H-215 (s.D. Texas, Aug. 4,
1970); £P£99is v- United Airlines, Inc.. 308 F. Supp. 959 (N.D.
111. 1970).

Class action Title VII cases are time-consuming and expen­
sive. They require months, sometimes years, of pretrial discovery. 
Analyzing the wealth of data likely to be produced, weaving them 
into a coherent presentation and dealing with the many proce­
dural hurdles encountered in such cases require massive inputs 
of time and money which no private practitioner can sustain.
But black people cannot afford to begin to pay the fees neces­
sary to maintain the practitioner during the course of litigation. 
Thus local attorneys, who enter such cases on a contingent fee 
basis, must look to a legal aid kind of institution for finan­
cial and technical assistance along the way. The record in this 
case is as good an example as any of a matter no private practi­
tioner could himself have maintained on a contingency fee basis.

If, as a practical matter, the only way Title VII cases can 
be brought is with the assistance of an organization such as 
the Legal Defense Fund, it is altogether fitting that the time

11



of both the local lawyer and the organization's lawyers be cotn-
5/

pensated in making the award. To diminish the award here 
because of the participation of its lawyers would be to grant the 
defendant a windfall at the expense of the public whose contribu­
tions make the work of the Legal Defense Fund possible. The 
financial burden should rightly be borne by those whose intransi­
gence and wrongdoing made the litigation necessary. Rather than 
diminish such fees, the court should be vigilant to insure their 
fairness so as to encourage such organizations to lend their 
assistance in areas where Congress has required individuals injured 
by racial discrimination to seek judicial relief, where the need 
for free legal services is well recognized, and where these organ­
izations vindicate policies deemed by Congress to be of the highest 
priority. Cf. Newman v. Piggie Park Enterprises, supra; Jenkins 
v. United Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968).

There is nothing in the legislative history of the 1964 Act 
which suggests that awards were to be diminished or precluded 
where a legal organization participated as counsel. Indeed, the 
legislative history of a similar provision in the Fair Housing Act 
of 1968 plainly suggests that no such limitation was intended in 
provisions of that kind. In the debate concerning the provision 
for attorneys' fees in the Fair Housing Act of 1968, United Scates 
Senator Hart, floor manager of the bill, noted the critical 
importance of the contributions of such legal representation:

5/ it should be noted that L.D.F. would recoup only a fraction of 
the expenses actually incurred in litigating this case. No request 
was made, for example, for air fare to New Orleans, hotel bil^s 
and other expenses incurred in assisting in this matter.

12



Frequently indigent plaintiffs are represented 
by legal associations, acting as "private attor­
neys general" in the vindication of important 
constitutional and statutorily created rights.
It would be most anomalous if courts were per­
mitted to deny these costs, fees, and damages 
to an obviously indigent plaintiff, simply 
because he was represented by a legal associa­
tion. I think it should be clearly understood 
that this representation in no way limits a 
plaintiff's right of recovery. 114 Cong Rec § 2308.

The court in Dobbins impliedly recognized this factor in changing 
its earlier ruling (limiting recovery to costs incurred before 
the attorney general entered the suit) to cover the costs over 
the entire period of litigation.

There is no difference in principle between the attorneys' 
fees provisions of the 1968 and 1964 Acts. It is apparent that 
under the 1968 Act licensed legal association such as the Legal 
Defense Fund are entitled to counsel fees. The same should be 
true of Title VII under which litigation is more difficult and 
which vindicates rights more critical to the long term social 
health of the nation.

In Miller v. Amusement Park Enterprises, Inc.. ___ F.2d
--- (No. 27529, May 13, 1970), this Court appears to have
reached that conclusion. And although no explicit ruling was 
made, the plain effect of the decision was to require that fees 
be awarded for services rendered by organizational lawyers.
There, plaintiffs represented by local counsel and Legal Defense 
Fund lawyers secured from this Court a ruling that the amusement 
park in question was covered by Title II. On remand, the dis­
trict court denied counsel fees on the ground that there were 
special circumstances warranting its disallowance. On appeal, 
prosecuted by Fund lawyers, the park contended, inter alia, that

13



Ui»> denial oI loon wa.4 proper since no fees were collected by 
the organization which was counsel for plaintiffs and there 
was no obligation on the part of the plaintiffs to pay. The 
argument was rejected, the judgment was reversed, and the
district court ordered to award reasonable counsel fees without

6/
any limitation. Said the court (slip op. 9-10):

What is required is not an obligation to pay 
attorney fees. Rather what--and all —  that is 
required is the existence of a relationship 
of attorney and client. ... Any other approach 
would call either for a fictional formal agree­
ment by persons legislatively recognized as 
frequently unable to pay for such services ... 
or a frustration of the Congressional scheme 
to effectuate the policies of the Act through 
private suits in which, of course, an attorney 
is a practical necessity. Congress did not 
intend the vindication of statutorily guaran­
teed rights would depend on the rare likelihood 
of economic resources in the private party (or 
class members) or the availability of legal 
assistance from charity— individual, collective. 
or organized.(Emphasis supplied.)

The district court in this case made a similar finding 
stating:

The statute [Title VII] does not prescribe the 
payment of fees to the lawyers. It allows the 
award to be made to the prevailing party. 
Whether or not he agreed to pay a fee and in 
what amount is not decisive ... The criteria 
for the court is not what the parties agreed 
but what is reasonable ... [Congress] did not 
look, like Lear's jester, to the breath of the

6/ The court observed that (slip op. 9, note 14):
Included among counsel were attorneys asso- 
ci-ated with a legal defense group who have 
acted in hundreds of civil rights cases before 
this court and the District Courts of this Circuit.

The reference is to the NAACP Legal Defense Fund.

14



imfee d lawyer, but considered that the pre­
vailing litigant should be able to pay the 
laborer the worth of his hire.
(Mem. Opinion of April 24, 1970; A. 75-76.)

A denial or reduction of counsel fees in this case because 
of the participation of lawyers from the NAACP Legal Defense 
Fund, Inc. would result in what this Court has said Congress 
did not intend: That is, that vindication of statutory rights
will depend on the rarity of a black person or class able to 
pay legal fees or the availability of free legal aid. Even 
where free legal service is available, denial of fees will 
unjustly enrich precisely the class that Congress determined 
should pay the cost of the litigation. Most importantly, it 
will seriously hamper the long-term enforcement of Title VII 
and therefore frustrate the nation’s drive toward equal employ­
ment opportunity.

III.
Appellees' Attorneys' Efforts to Settle 
This Case Without Litigation Were Earnest 
.?nd Reasonable and Were Unsuccessful Due 
Only to the Disinterest of Appellant i ~
Further Settlement Negotiation-:--------

Defendant (appellant here) contends that litigation of 
this case could have been avoided but for plaintiffs' action 
of placing impossible conditions in compromise discussions. 
(Appellant's Brief, pp. 8-9.) The record, however, points to 
an entirely different, and contradictory conclusion.

Conciliation efforts began in May, 1966. On May 20, 1966 
a conciliation meeting was held between attorneys for plaintiffs

15



defendant and the Equal Employment Opportunities Commission.
On June 7, 1966, defendant sent a draft settlement agreement 
to EEOC. On June 16, 1966, plaintiffs moved in the district 
court for a stay of further proceedings pending conclusion of 
conciliation procedures with EEOC. On August 31, 1966, a 
further meeting was held between the parties to negotiate settle­
ment. On September 20, 1966, plaintiffs' attorneys sent defendant 
a draft proposal for settlement. On September 28, 1966, 
defendant responded objecting to certain provisions of the 
draft (A. 177-199). On October 11, 1966, plaintiffs' attorneys 
responded to the defendant's letter of September 28, 1966, 
suggesting that further consideration be given to the areas of 
disagreement, and suggesting a meeting in Washington at the 
headquarters of EEOC to negotiate further (A. 199-202). Defendant 
never responded to this invitation. Thus, it was as a direct 
result of defendant's inaction that negotiations ended at that 
point (A. 203, 183-184).

Defendant's contention that the plaintiffs’ proposed 
conciliation agreement made impossible demands is clearly ten­
uous. The relief afforded by the court required far greater 
efforts of the defendant to correct past discriminatory prac­
tices than that originally demanded by the plaintiffs in their 
draft settlement agreement. Compare A. 64-69 with A. 199-202.
The fact that the court did not require reports to counsel for 
plaintiffs is a result of the court's assumption of jurisdic­
tion.. because settlement was not reached between the parties. 
Changes in toilet and locker facilities was clearly a minor demand

16



compared with points one and five of plaintiffs' draft, which 
the district court granted in its final order (A. 64-69).

In any event, defendant fails to explain why, if it 
thought plaintiffs were being unreasonable, it made no effort 
to secure the assistance of the trial judge in resolving the 
dispute. And this is all the more curious since the matter 
of locker room and toilets were never discussed after Judge 
Rubin entered the case. it was, by December 1967— more than
one year later and when discovery procedures were initiated_
no longer an issue. it was not mentioned in the pre-trial order 
setting forth the issues nor was it discussed at the trial. To 
claim at this point that disagreement over toilet facilities 
blocked settlement of this matter is patently absurd.

The last effort to settle the case was plaintiffs' attor­
neys letter of October 11, 1966, which was consciously ignored 
by defendant (A. 180, 183-184). Between that time and the time 
of trial on January 22, 1969, numerous pre-trial conferences 
were held. On no occasion did the defendant raise the possi­
bility of further settlement negotiation, although plaintiffs 
indicated to the court that they were willing to hold such con­
versations at any time (A. 186).

Judge Rubin, at the close of the April 7, 1970, hearing 
observed:

In this case, the Court repeatedly inquired 
of counsel for the defendants as well as of 
counsel for the plaintiffs whether any discus­
sion of settlement would be fruitful, [sic] although 
the Court did not keep minutes of these con­
ferences, indeed does not ever keep minutes of

17



informal conferences because to do so would 
disrupt the informality that the Court strives to achieve, [sic]

The Court was repeatedly told by counsel for 
the plaintiffs that they were willing to cFTK̂ —  
cuss compromise and was told on several occa­
sions by counsel for the defendants~~tKat----
discussions of compromise were not being 
fruitful, and the Court following its usual 
policy, did not pursue the matter further 
because the Court didn't feel that it ought to 
tell the defendant in this kind of suit that 
it had to talk settlement.

This Court's familiarity of the matter stems 
from the time sometime in 1967 when the case 
was reassigned, but in reflecting on the matter 
and running through the record, I find that the 
first of a number of conferences was held on 
December 21, 1967, another conference was held 
on February 21, 1967, at which I am certain 
this matter was brought up because the pretrial 
order then entered says it was, another confer­
ence was held on July 2, 1968, at which the 
matter was again brought up, another conference 
was held on November 15, 1968, and without in 
any way reflecting on the decision in this case, 
xt just seems to me that if counsel for either 
party is serious and desires to discuas any 
possibility of settlement, ample opportunity 
was afforded during this period of time without 
.gggard to what may have happened before. (A. 186- 
187) (Emphasis supplied.)

Whether counsel fees should be denied or limited because 
the successful litigant had unfairly impeded settlement is 
obviously a matter with the discretion of the trial judge. It 
is clear that this matter was carefully considered by Judge
Rubin and there is nothing in the record which suggests that

1_/
he abused his discretion in that regard.

2/ Defendant's suggestion "that plaintiffs' attorneys bear 
the responsibility for the time, at least in substantial part, 
they spent in this litigation" (Appellant's Brief, p. 9), is 
clearly inappropriate. in addition to the defendant's failure

18



IV.
The Plaintiffs' Estimate of Time and 
Value of Their Services Were Reason­
able in the Circumstances of This Case.

Defendant asserts that the amount of plaintiffs' claim
ought to be reduced because they did not prevail in every aspect

8/
of their case. Plaintiffs were able, in fact, to sustain 
almost all of their allegations. The court found discrimination, 
as alleged, against two of the three plaintiffs, as well as 
against the class. More importantly, the court found and orders 
terminated a generalized pattern of insidious multifaceted dis­
crimination, proof of which was time-consuming and difficult to 
adduce. (A. 28-63; compare, e.g., plaintiffs' exhibits at A. 
189-198, the extensive proposed findings of facts and the numer­
ous memoranda of law.)

In any event, it should be noted that a victory for the 
individual plaintiff is not a prerequisite to an award of attor­
neys' fees. See Richard v. Griffith Rubber Mills. 300 F. Supp.
388 (D. Ore. 1969), where attorneys' fees were awarded although

(Continued)
to accept plaintiffs' invitation for further negotiation for set­
tlement, the record shows that the defendant applied for and was 
granted extensions of time for filing virtually every pleading 
in this case, including the answer to the complaint, answersto 
all three sets of interrogatories propounded by plaintiffs', 
defendants’ proposed findings of fact, post-trial brief, and brief 
on appeal. Defendant must thus bear responsibility for any delav 
in the resolution of this cause of action, not plaintiffs.
®/ Defendant's allegation that fees should be reduced because 
some of the objections to the initial set of interrogatories 
were sustained, hardly merits refutation. Indeed, virtually all 
the interrogatories propounded by plaintiffs were required to be 
answered and this was true of the first set also. Compare the 
three sets of interrogatories and the answers thereto which are 
a part of the original record filed in this case.

19



no relief was issued for the particular plaintiff. Compare 
Jenkins v. United Gas Corp.. 400 F.2d 28, 32 (5th Cir. 1968).

Defendant argues that counsel fees ought to be reduced on 
a number of other grounds which are both factually inaccurate 
and frivolous, i.e., that no compensation should be granted for 
the presence of more than one lawyer at any hearing; that a 
law student was used whose hours were reported; that the rates 
charged were too high in that the attorneys for plaintiffs were 
not "veteran lawyers;" that the itemization submitted in court 
on February 9, 1970, was different from that transmitted to 
counsel on December 11, 1970; and that no allowance was made for 
the newness of the law.
Duplication of Counsel.

None of the items submitted (A. 69) included the hours for 
more than two counsel even where additional counsel appeared. 
Thus, for example, although Mr. Trudeau attended part of the

in January, 1970, the 32 hours submitted represented only
Mr. White and Mr. Elie's time (A. 70). The court noted the

, . 9/complexity of the trial and of all the aspects of this case.
Both Mr. Elie and Mr. White actively participated at the trial.

9/ In his April 24 opinion on fees. Judge Rubin observed:
The issues required considerable skill to 
present, and the actual trial was relatively 
short only because, as a result of many pre­
trial conferences and elaborate pretrial 
preparation, plaintiffs' counsel marshalled 
an impressive array of facts, skillfully ana­
lyzed them, and presented them lucidly. In 
less capable hands or with less preparation, the 
trial could well have lasted weeks. (A. 79; 
compare A. 168.)

20



The participation of both counsel in view of the heavy input 
was clearly warranted and necessary to provide adequate repre­
sentation to the plaintiffs.
Law Student Hours.

It was fully explained at the hearing that "none” of the 
law student’s time was included in the submission and that the 
120 hours in item "N" (preparation of exhibits) (A. 100) was 
fully Mr. White's time. if counsel for defendant doubted Mr 
understanding and appreciation of the exhibits he was obligated 
to make that clear by cross-examination and not by his undocu­
mented "suggestion" in a brief on appeal.
"Veteran" Attorneys.

Appellant suggests that the fee be tied to length of 
practice rather than the difficulty of the issues and the 
quality of the representation. The proposition hardly needs 
extensive rebuttal. For, as this Court knows, legal ability 
does not necessarily increase proportionately with years of 
practice. A better determinant of a reasonable fee is the qual­
ity of the legal product which, in this case, amply justifies 
the award.

The district court noted that the case involved interpre­
tation of a new and difficult statute, and that the case was 
filed before many of the decisions cited in the court's eventual 
opinion had been reached (A. 78). On more than one occasion it 
complimented the work of plaintiffs' c o u n s e l . i t  said 
(A. 169-170):

10/ See note 9, supra.

21



The material filed in this case ... was, I 
think, far, far above average and indeed 
ranks with the best material that I have had 
to consider in any case in the three years I 
have sat on the bench ... [i]t would be unfair
to assume that he who does bad work is entitled 
to the same pay as he who does good work.

In any event, Mr. Elie and Mr. White have been members of 
the bar for some eleven and five years, respectively. Certainly 
the award is not excessive given the complexity of the legal 
issues, the enormous time input and exceptionally high quality 
of their efforts.

Dj-ffer:*-nc* Estimate of Attorneys' Fees between 
December 11, 1969, and February 9, 1970.

The letter of December 11, 1969, appended by appellant to 
its brief (Brief pp. 14-17) was simply an offer by plaintiffs' 
counsel in the hope that the matter could be resolved without 
the necessity of a formal hearing. it was rejected. The pro­
posal was made at the express direction of the trial court.”  
Since it was an offer of compromise it, of course, differed from 
plaintiffs' formal submission at the hearing. Except, however, 
for the hourly rates, the differences were minor.

The December 11, 1969, proposal, since it stemmed from an 
attempt at compromise, should not, in our view, have been 
admitted. in any event, that there were differences between

11/ Judge Rubin observed during the hearing:
I will say for the record that I urge both 

counsel to try to get together and see if they 
can reach an agreement with respect to counsel 
fees, and I told them I stood ready to hear the 
matter if they could not. (A. 116)

22



the amounts requested is not helpful to appellant. For, the 
fee ultimately awarded by the court differed by only $660 from 
the December proposal whereas the later request was $7,730 
higher. it should be noticed also that neither proposal 
included the time spent in preparing for and attending the 
two hearings on fees.
Summary:

Judge Rubin's April 28 opinion reflects that in making 
the determination of a reasonable fee he very carefully weigi 

factors, including those recommended by the American Bar 
Association.

No extensive reply need be made to appellant's claim that 
plaintiffs' itemization exaggerated hours spent and requested 
an unduly high hourly rate. Judge Rubin’s award was of a 
total sum. No one cay say precisely, therefore, how many hours 
he accepted or rejected, what hourly rate he used, nor whether 
that rate was different for the various items. It seems apparent 
however, that the overall rate was not appreciably more than 
the $30.00 per hour recommended by the Louisiana State Bar 
Association and, indeed, appellant had fared much better than
it thinks for the ultimate award was $7,700— roughly one-four_
less than plaintiffs had requested.

Obviously the trial court is the best judge of the quality 
of plaintiffs' efforts and of how much time—input would reasonably

12/ Appellant claims that newness of the law is a special cir­
cumstance requiring disallowance or limitation of the fee. That 
argument has already been rejected in Miller v. Amusement Park 
Enterprises, Inc., supra, at 6 , n. 5; 8-9.

23



have been required along the way. We suggest that this Court 
conduct a very careful review of the record in this case, 
including the extensive interrogatories, records copied and 
analyzed, exhibits, proposed findings of fact and the numerous 
pre and post-trial briefs. That review would demonstrate that 
the $20,000 awarded was moderate and conservative, especially 
in light of the accepted practice that hourly rates may properly 
be higher in contingency fee cases.

V.
The District Court Did Not, on This Record.
Abuse Its Discretion by Allowing CosTiT

Appellant contends that the additional costs submitted, 
apart from attorneys1 fees, should not be assessed because they 
were not discussed at the February 9 hearing. But plaintiffs- 
submissions in December and February made it plain that they 
were seeking recovery for costs as well as fees. And each 
item sought to be recovered as costs was proper under 28 U.S.C. 
§ 1920 and was separately stated (A. 70; Appellant's Brief, p. 
17). Those itemizations served in practical effect as a bill 
of costs under § 1920.

Rule 54, F.R.C.P. provides that "costs shall be allowed 
as of course to the prevailing party." it has been suggested 
that a denial of costs is proper only:

13/ Substantial counsel fees, exceeding $20,000, were awarded, 
fErneXTaPl?Qfio? ^ ted States v. Local 189. 301 F. Supp. 906 
reached ^ ^  K ^  gree?ent f°r 3 similarly large amount was
279 F su^p ^  PhUiP Mogri"' Tnr~-

24



In the nature of a penalty for some defection 
... in the course of the litigation as, for 
example, by calling unnecessary witnesses, 
bringing in unnecessary issues or otherwise 
encumbering the record, or by delaying in 
raising objections fatal to the plaintiff's 
case. Chicago Sugar Co. v. American Sugar Co.,
176 F.2d 1, 11 (7th Cir. 1949).

No such allegations have been made here and none can be asserted 
in good faith.

The rule permits costs to be taxed by the clerk and where 
the latter's action is challenged resort be made to the court. 
Here plaintiffs were already before the court with respect to 
fees. It was logical and simple to make its request for costs 
at that time.

Appellant was not prejudiced by plaintiff's failure to file 
a document titled "Bill of Costs" or by the fact that the court 
acted in the first instance rather than the clerk. For, as 
previously indicated, it was fully aware of the request for 
allowance of costs which were clearly itemized. Yet, it chose 
not to contest them, although it had an adequate opportunity to 
do so at either the February 9 or April 7 hearings. The specific 
approval by the court in its April 28 order clearly cured any 
defect that may have theretofore attached by the failure to 
file initially with the clerk.

Whether costs ought to be taxed is plainly a matter for 
the discretion of the trial court. Appellant made precisely 
this argument after the hearings below and they were rejected by

25



14/
Judge Rubin. There is nothing in its brief which 
that in awarding costs he had abused his discretion.

indicates

CONCLUSION

For the foregoing reasons, the court should affirm the 
district court's grant in toto of plaintiffs' claim for attor­
neys fees and costs in this case so that such "private 
attorneys generals" will not be penalized for performing the
public function of eradicating unlawful discrimination in 
employment.

Respectfully submitted,

S E. E L I E ---
om 1 1 1 0  

344 Camp Street 
New Orleans, Louisiana 70130

A. M. TRUDEAU
1821 Orleans Avenue
New Orleans, Louisiana 70146

ROBERT BELTON
216 West 10th Street 
Charlotte, North Carolina 28202

JACK GREENBERG 
WILLIAM L. ROBINSON 
FRANKLIN E. WHITE 
SYLVIA DREW

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appelleeu

14/ There is no claim by appellant that any item of cost is 
exaggerated. Virtually all the amounts are verifiable froi 
the very record in the case. And as to propriety thlir allow-
liltsL f f P  RUbln- defPite these ^  arguments below, indi-' lach item consciously exercised his discretion to permit

26



CERTIFICATE OF SERVICE

The undersigned certifies that copies of the foregoing 
Brief for Plaintiffs-Appellees were served by United States 
mail, air mail, postage prepaid, this 11th day of September, 
1970, as follows:

Samuel Lang, Esq.
Richard C. Keenan, Esq.
Kullman, Lang, Keenan, Inman & Bee
1010 Whitney Building
New Orleans, Louisiana 70130
Stanley Herbert, Esq.
General Counsel 

Marian Halley, Esq.
Equal Employment Opportunities Commission 
1800 G Street, N.W.
Washington, D. C.

27



r