Miller v. Continental Can Company Plaintiffs' Reply Brief to Defendants' Opposition to Plaintiffs' Motion for Fees and Costs
Public Court Documents
September 1, 1982

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Brief Collection, LDF Court Filings. Miller v. Continental Can Company Plaintiffs' Reply Brief to Defendants' Opposition to Plaintiffs' Motion for Fees and Costs, 1982. 723b12a6-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/89bec6d6-2f4f-457e-9ba0-e9748d29b920/miller-v-continental-can-company-plaintiffs-reply-brief-to-defendants-opposition-to-plaintiffs-motion-for-fees-and-costs. Accessed April 27, 2025.
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€ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION x 0Ud3rnJUf* to if JL) {p>J Uxm JL us. ^ V (b) kX'sforicJl*. OUHUtr CO (XjIUaxJIaJI Kr C ^ . ***** *) M aaI J ^ U A / CHARLIE MILLER, et al., Plaintiffs, -against- CONTINENTAL CAN COMPANY, et al., _i ujueXtdU-* (iixd lcxd to^ . Io'SLiÛ Civil Action No. 2803 . i rn. De fendants. x PLAINTIFFS' REPLY BRIEF TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR FEES AND COSTS Introduction Before the Court is a motion for an award of fees and costs for time expended by plaintiffs' attorneys in the instant litigation through December 1981. (Plaintiffs will be filing shortly a supplemental motion for fees that will set forth the hours spent on this litigation during 1982, and any expenses and costs incurred in connection with those hours.) As of that date plaintiffs' attorneys had spent only slightly more than 1200 hours prosecuting a complex civil rights case that had been pending for more than ten years when settlement was reached. Plaintiffs submitted with their motion for fees detailed affidavits of counsel that set forth their experience and the nature of the services performed. In addition, pursuant to informal and formal discovery requests, plaintiffs have responded to two sets of interrogatories and provided copies of all available original time records to defendants, among other requested documents. Plaintiffs have prevailed against both the remaining defendants, Continental Can Company, Inc. (the "Company") and United Paperworkers International Union and its Locals 576 and 638 ("UPIU"), in a case that was vigorously defended, during a time when the courts were fine-tuning standards of liability and methods of proof. These evolving standards ultimately led to motions for reconsideration of the liability decisions issued August 1976. It is beyond reasonable dispute that class actions are complex and employment discrimination case are no less so, particularly in the area of seniority after the decision in International Brotherhood of Teamsters v. United States, 431 U.S. 328 (1977) ("Teamsters"). Yet, plaintiffs were successful in defending against the motions for reconsideration and in obtaining a total of $225,000 in backpay for a class of 47 persons. While neither defendant contests plaintiffs' entitlement to fees as prevailing parties in this litigation, pursuant to Title VII 42 U.S.C. § 2000e-5(k) and the Civil Rights Attorney's Fees Award Act 42 U.S.C. § 1988, as amended by Pub. L. 94-559, the defendants oppose plaintiffs' motion for fees with regard to the following issues: (1) Compensable Hours; (2) Hourly Rate; (3) Use of a Multiplier; and (4) Costs and Expenses. This reply brief addresses each of these issues. I » I - 2- I (1) Plaintiffs Are Entitled To Be Compensated For All Hours Requested In order to determine the fees that should be paid to plaintiffs' counsel the Court must first establish a lodestar figure. That figure is arrived at by an examination of the hours for which compensation has been requested and a sub sequent setting of the appropriate rate to be applied to those hours. Fitzpatrick v. Internal Revenue Service, 665 F.2d 327, 332 (11th Cir. 1982). Plaintiffs are entitled to be compensated at a reasonable rate for all hours claimed in their motion for fees. (a) Alleged duplication The Company contends that all hours of attorneys Sherwood and Teitelbaum should be disallowed because of duplication. It also urges the Court to disallow a certain portion of the time spent by lead counsel, Judith Reed, specifically, that time it ironically denominates as "catch-up" time, much of which was spent responding to the Company's motion for re consideration. Plaintiffs were opposed by several attorneys from the prominent Chicago firm of Pope, Ballard, Shepard & Fowle, as well as local counsel, who represented the Company.—^ UPIU was represented at trial by local counsel, with post- Teamsters work being performed by two New York attorneys, 1/ At trial, the transcript reflects that three attorneys, two from Pope, Ballard plus local counsel, appeared on behalf of the Company. During the post-Teamsters phase, plaintiffs' counsel have been in personal contact at one time or another with no fewer than three other attorneys representing the Company, in addition to Mr. Ryza (Patricia Brandin, Terry Satinover, and Alex Barbour). - 3- Benjamin Wyle and Gene Szuflita, in addition to local counsel. In a complex case such as this, with multiple defendants, for the Company to argue that in the critical post-Teamsters phase of this litigation it would have been appropriate and consistent with the requirements of adequate representation to have had one lawyer assigned to represent plaintiffs flies in the face of reality. Such an argument would be entirely inconsistent with the overriding policy of encouraging the enforcement of civil rights litigation through private attorneys general. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam). The limited number of attorneys who worked on this case actually demonstrates 2/an attempt by plaintiffs to avoid duplication of effort.— At any given stage of this litigation plaintiffs were repre sented by two lawyers one of whom usually had principal responsibility for the case; on rare occasions there were three attorneys. During the pre-trial, trial and immediate post-trial phase Fletcher Farrington and Mike Bailer performed 3 /virtually all the work on this case.— During the trial, 2/ Plaintiffs have requested, through formal discovery, information regarding the time spent by defendants in this litigation, including the number of attorneys and the hours spent by those attorneys. Thus, far, defendants have refused to provide any of the requested information, and plaintiffs' motion to compel this discovery is before this Court. Any claim by defendants that duplication has occurred should be measured against the hours expended by defendants. Selzer v. Berkowitz, 477 F. Supp. 686 (E.D.N.Y. 1979). 3/ The transcript reflects that Bobby Hill was present and examined certain witnesses; however, the time he seeks to be compensated for amounts to only 63 hours, much of it expended after trial of this action. - 4- three attorneys were present for the Company, and presumably the two most active of those attorneys, Mike Warner and Bill Ryza, expended as much or more time than plaintiffs' attorneys in this phase, mounting a vigorous defense. UPIU was also represented by an attorney at this stage. During the post-Teamsters phase of this litigation, when the liability judgment was clearly in jeopardy, Judith Reed and Herbert Teitelbaum were responsible for successfully protecting the previous liability findings and reaching an ultimate backpay settlement. Peter Sherwood initially assumed primary responsibility for the case. Mr. Sherwood, an LDF attorney and a Title VII litigator who has developed a special expertise in paper industry seniority issues, seeks compensation for 7.7 hours at a current rate of $125.00 an hour.—^ Mr. Sherwood's time should be compensated as productive work, most of which occurred at a time when Mr. Sherwood was the only LDF attorney working on the case. The time was necessitated by the Teamsters decision and the scheduling by the Court of a May 1978 hearing on this matter. The minimal research done by Mr. Sherwood was for the purpose of discovery on Teamster s issues not relevant at the time of the first trial, and on which the Court had granted the right to take discovery. 4/ Plaintiffs agree with defendants that they are not liable for compensation for time spent responding to IBEW's motion for fees. Where time on that motion was inadvertently included in the original motion, it will be excluded from corrected calculations that will be filed with this Court in the near future. Plaintiffs do not agree, however, with the Company, which contends that all Sherwood's time should be disallowed or with UPIU's contention that 4.3 hours should be disallowed. - 5- After Ms. Reed joined LDF's staff in July 1978, Mr. Sherwood's time expended in this litigation dropped considerably. Further more plaintiffs have not requested compensation for any intra-office conferences between Sherwood and Reed or the time spent by Sherwood attending a three-hour settlement conference with opposing counsel.-/ Herbert Teitelbaum, an attorney with considerable experience in both general and civil rights litigation, seeks compensation for fewer than 100 hours. Mr. Teitelbaum's hours were expended principally in the review of briefs filed in the post-Teamsters phase (40.75 hours) and two court appearances (27.5 hours) It is not unusual, and indeed is standard practice, for more than one attorney to prepare memoranda and briefs in cases of the degree of complexity found here. The extensive briefing done on the Teamsters issue was required by the changing parameters in the law and the fact that the proof in this litigation spanned close to thirty years. Both defendants added to the already sizeable record with further evidence.— The entire record as supplemented had to be analyzed and responded to by plaintiffs in their briefs. Mr. Teitelbaum's presence at two court appearances is 5/ It should also be noted that Mr. Sherwood is one of the attorneys who represented plaintiffs in Meyers v. Gilman Paper Co., 556 F.2d 758 (5th Cir. 1977), where UPIU was also a defendant and similar issues raised in the post- Teamsters phase of that litigation. 6/ Teitelbaum's remaining hours were spent in conferences with other counsel for plaintiffs (Reed, Bailer or Sherwood) (11.8 hours), meeting with class members (10 hours) and negotiating the backpay settlement (7.5 hours). 1_/ The Company submitted the affidavit of the Plant Manager Claude Adams, while UPIU submitted summaries of collective bargaining agreements as well as lengthy affidavits by union officials. - 6- challenged by both defendants (Co. Memo. p. 14; UPIU Memo, Schedule C). The first court appearance was the scheduled argument on the motion for reconsideration (January 16, 1980) . The issues before the court were novel and complex, and the outcome of that motion was crucial. Hence, plaintiffs were justified in having both attorneys present. See North Slope, 515 F. Supp. at 966, n. 21 (supplementary counsel may be needed where issues are complex and defense counsel able). In addition, there were two defendants, each represented at the January hearing by one out-of-town counsel, with the Company's local counsel also appearing. During the first court appearance Ms. Reed argued the motion; however, attorneys Teitelbaum and Reed had conferred regarding this important argument. At the second court appearance, Mr. Teitelbaum and Ms. Reed were both active participants, and the result of that conference, with a great deal of assistance from the Court's prodding, was the confirmation of a settlement that defendants had attempted to retract. It ill behooves defendants to criticize the relatively small number of hours devoted to settlement of the backpay issues by either attorney.—^ Had plaintiffs' counsel not devoted time and energy to reviewing carefully its position 8/ As noted earlier Mr. Teitelbaum devoted 7.5 hours to settlement and approximately 9 hours to the settlement con ference called by the court at the request of plaintiffs. Ms. Reed devoted a total of 31.9 hours to settlement including 9 hours for the court appearance, as well as a number of hours devoted to negotiating with the defendants on the degree and the amount of backpay. - 7- and weighing the interests of their clients, the result would have been a Stage II hearing. Such a hearing would have, doubtless, consumed far more hours of plaintiffs' counsel, as well as the time of opposing counsel and the Court. It is clear that Mr. Teitelbaum's hours are reasonable, and he performed a valuable role, similar to that of a senior partner in a law firm. Mr. Teitelbaum efficiently reviewed court submissions before filing, consulted with Ms. Reed on litigation strategy, and participated in the settlement of the backpay issue. The bulk of the work was "appropriately allocated ... to [a] less experienced [attorney], with review of that work by the senior attorney." North Slope Borough v. Andrus, 515 F. Supp. 961, 967 (D.D.C. 1981). See also, McPherson v. School District #186, 465 F. Supp. 749, 757 (S.D. 111. 1978) and Copeland v. Marshall (Copeland III), 641 F.2d 903 n. 50. (". . . young associates' efforts will be fully productive only if guided by proper supervision by 9 /experienced litigators.")— Finally, the Company attempts to justify a percentage deduction from the hours of Ms. Reed based solely on the fact that she replaced Mr. Bailer as the LDF attorney assigned to the case. The Company would have the court assume the 9/ In McPherson, the court approved the compensation of all hours put by Norman Chachkin, then an attorney with LDF, despite the fact that he acted in an "advisory" capacity. Id. at 760. - 8- fact of duplication, despite the fact that after the decision in Teamsters, the prospect of a second trial in a case already seven years old was very real. The Company makes the unsup ported statement that had Farrington and Bailer remained in the litigation the total time would be less.— ^ As the Company admits, the time it chooses to subsume under the term "catch-up" was spent on preparation of responses to motions for reconsideration filed by the defend ants.— ^ The review of the record was necessary in order to provide record cites to that evidence already in the record that supported a finding of liability under the newer, stricter 12/standard announced under Teamsters.— It is doubtful that 10/ It is not unexpected in protracted litigation for a change in attorneys to occur. However, where as here, the attorneys maintain close contact and confer about the case, the possibility for duplication is minimized. 11/ UPIU contends that time spent in reviewing the record, meeting with class members and the visit to the Port Wentworth Plant should be disallowed because it constitutes duplication. The purpose of this time expenditure was to determine whether there was evidence bearing on the Teamsters issue, either testimony from class members or of a documentary nature that should be added to the record. Prior testimony was developed under a different standard of proof and the documents inspected at the Plant, which consisted of Company- union minutes relevant only after Teamsters had not been produced prior to this time. 12/ In James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977), after listing the four factors gleaned Teamsters, the Court noted that "a case-by-case analysis of seniority systems in light of section 703(h) is necessary." The Fifth Circuit went on to suggest the type of evidence that might be relevant, concluding that the parties should be given the opportunity to submit additional evidence. Id. at 352-53. - 9- any counsel would have been able to assess whether or not the record as made before Teamsters was sufficient to support liability under the new standard, without a thorough review of that record. While an alternative might have been to do a less scrupulous review, the result would have been an evidentiary hearing to clarify the record, with the concomit ant delay, expansion of the record and a wasting of the time and energy of the Court and counsel. Instead, based on their review, plaintiffs' counsel pointed out, successfully, that the record supported a finding of liability under Teamsters, entitling the affected class members to substantial backpay. To the extent that plaintiffs' review was a thorough one, obviating the need for a further evidentiary hearing on the matter, the interests of all parties and judicial economy were served, and plaintiffs' counsel should be compensated for all time spent on this task. (b) original time records Pursuant to a request by the Company, plaintiffs have produced all available, contemporaneously maintained time slips from which the exhibits for each attorney's affidavit were prepared. While neither defendant disputes the accuracy of the hours and the accompanying description of the work performed, defendants contend that simply because plaintiffs were unable to produce time records for all hours worked by Mr. Bailer there should be a reduction in those hours. (Co. Mem p. 18.) The exhibit to Mr. Bailer's affidavit was prepared by reference to time slips kept by Mr. Bailer - 10- while he was employed at LDF. Defendants can cite to no case where the party seeking fees has been disallowed those fees where specific details on hours have been provided, simply because original time records have been lost; indeed, attorneys have been compensated for reconstructed time, see, e.g., Harkless v. Sweeney Independent School District, 608 F.2d 594 (5th Cir. 1979), aff1g 466 F. Supp. 457 (S.D. Tex. 1978); Hedrick v. Hercules, Inc. 658 F.2d 1088, 1099 (5th Cir. 1981) (plaintiffs' attorney compensated for 200 hours, Gautreaux v. Landrieu, 523 F. Supp. 684 (N.D. 111. 1981) (counsel compensated for estimated time). What is required from plaintiffs is that their application be "sufficiently detailed" to enable the Court to reach an informed decision. National Ass'n of Concerned Vets, v. Secretary of Defense Case, 675 Fed. 1319 at 1326 (D.C. Cir. 1982); this plaintiffs 13/have provided.— 7 Nor is it appropriate to follow the Company's suggestion of placing a ceiling on the number of hours for which Bailer should be compensated by reference to the number of hours claimed on Farrington's behalf. A considerable amount of Bailer's time was devoted to time-consuming task researching and the preparation of briefs. After the last 13/ The cases cited by the Company simply have no relevance to the instant case application (Co. Memo p. 17, nn. 12 and 13). Inthose cases, the courts indicated disapproval of records that are "casual, contradictory and confusing" (Cohen v. Community College of Philadelphia, 522 F. Supp. 879 (E.D. Pa. 1981) at 881) or were vague (Richardson v. Jones, 1506 F. Supp. 1259 (E.D. Pa. 1981) or that didn't provide enough information on hours (Wehr v. Burroughs Corp., 477 F. Supp. 1012 (E.D. Pa. 1979), aff'd on other grounds, 619 F.2d 276 (3d Cir. 1980) . - 11- entry for Farrington (12/30/74), Bailer continued to spend time working on the instant litigation (see entries 9/75 through 10/15/75). Between March 1974 to October 1975, Bailer expended a total of 122 hours in post-trial briefing and attempting to work out a settlement (c) Successful vs. unsuccessful claims The legislative history indicates that counsel for civil rights plaintiffs are to be "paid, as is traditional with attorneys compensated by a fee-paying client, 'for all time reasonably expended on a matter.'" [Citations omitted]. S. Rep. No. 94-1011 94th Cong. 2d Sess. 5 (1976). As the Sixth Circuit commented in Northcross v. Board of Education, Memphis City Schools, 611 F.2d 624, 635 (1979), cert, denied, 100 S. Ct. 2999 (1980) "we know of no 'traditional' method of billing whereby an attorney offers a discount based upon his or her failure to prevail on 'issues or parts of issues. ' / 14/ Based on defendants' notation that the trial lasted nine days, plaintiffs arrive at a corrected total of 360 hours for which Bailer should be compensated. (This figure also reflects a deduction of 2.25 hours spent on IBEW's motion for attorneys' fees on 1/21/74 and the addition of 10.0 hours estimated as Bailer's post-'76 time, including the preparation of an affidavit in connection with the motion for fees.) By deducting the 122 hours referred to in the text, one arrives at the total of about 240 hours, which is very close to the approximately 218 hours listed in the exhibit to Farrington's affidavit. To limit Bailer's hours, would mean that the time spent by plaintiffs' attorneys on extensive pretrial briefing would go uncompensated. 1_5/ See also Allen v. Terminal Transportation Co., 486 F. Supp. 1195, 1201 (N.D. Ga. 1980); Davis v. County of Los Angeles, 8 FEP 244 (N.D. Cal. 1974); Stanford Daily v. Zurcher, 64 F.2d 680 (N.D. Cal. 1974). - 12- In Jones v. Diamond, 636 F.2d 1364, 1382 (1981) cer t. denied, 453 U.S. 950 (1981). The Fifth Circuit cautioned against a liberal deduction of the hours expended in pursuit of issues that were ultimately lost, noting that "in complex civil rights litigation ... issues are overlapping and intertwined," and "attorneys must explore fully every aspect of the case, develop the evidence and present it to the court." See also United States v. Terminal Transport Co., 563 F.2d 1016 (5th Cir. 1981) .16/ In Miller v. Carson, 628 F.2d 346, 348 (5th Cir. 1980) the court recognized the interrelationship of issues: Because issues may at times be reasonably related, we reject anything in Nadeau or Sethy which insists that a district court must always sever an attorney's work into 'issue parcels' and then assess that work for purpose of a fee award in terms of the outcome of each issue standing alone. See also Tasby v. Wright, Civ. Action No. 3-4211-H (N.D. Tex., August 1982); and Dowdell v. Apopka, 521 F. Supp. 297, 301 (M.D. Fla. 1981); Dunten v. Kibler, 518 F. Supp. 1146 (N.D. Ga. 1981) . The Company fee awarded (Co. hours as well as other issues to deduct fully 10% of any while UPIU identifies 12.35 for which an unspecified amount urges this Court Mem,, p. 25), 16/ Other circuits have also taken the should be allowed for losing issues as well See, e.g., Manhart v. 652 F.2d 904 Kansas City v all time expenses as those spent on Los Angeles Dept. position that fees on nonfrivolous winning issues. of Water and Power, 9th Cir. 1981) ____________ Ashcroft, 655 F.2d 848 (8th 2d 5 (1st Cir. 680 (N.D. Cal. Planned Parenthood Ass'n of , 675 F. 64 F.R.D. Cir. 1981); but 1982). Stanford 1974), cited with cf. Miles v. Sampson Daily v. Zurcher, approval in the legislative history, long ago noted that "... courts should not require attorneys (often working in new or changing areas of the law) to define the exact para meters of the courts' willingness to grant relief." _Id. at 684 . - 13- of time should be excluded (UPIU Memo, p. 3, Schedule A) ^ Both positions are untenable, and there should be no deduction with the sole exception of those hours spent on IBEW's motion for attorney's fees (supra, n. 4). Plaintiffs commenced this litigation by the filing of a complaint that alleged a pervasive pattern of discrimination practiced by the Company and a member of Union defendants against the class of black plaintiffs. As class counsel, plaintiffs' attorneys were obligated to investigate and 18/present evidence on all potential claims.— ' None of the ""losing claims" in this case were "clearly meritless" Dowdell, 521 F. Supp. at 301. Rather, this is a case where the losing claims are not separate causes of action but are "part and parcel of one matter" (Copeland v. Marshall, 641 F.2d 880, 892 n. 18 (D.C. Cir. 1980)— 7 In addition, it is clear that proof 17/ Defendants claim there should be no compensation for cTaims against former defendants IAM and IBEW, or for time expended in preparation of the claim that UPIU had breached its duty of fair representation. The Company makes much of the fact that the claim of discrimination in supervising and clerical positions was ultimately lost. 18/ As one commentator has noted: Class action counsel are ethically bound to initially pursue all theories which appear warranted at the outset of the litigation. Unlike their peers in more pedestrian practice, they are not able to secure informed consent from their class 'client' to narrow the action of the easier issues. These lawyers constitute the backbone of the Title VII bar, yet are subjected to the largest disincentives to continue in this capacity. Ramey, "Calculation of Attorneys' Fees Awards in Title VII Action Against Private Defendants," 58 J. Urb L. 690, 637 (1981). 19/ UPIU's claim that time shall be deducted for the fair representation claim has no merit. First, any such time is - 14- on the losing claims "overlapped" with the success claims. Cf. Hardy v. Porter, 613 F.2d 112, 114 (5th Cir. 1980) (while plaintiffs did not prevail on one separable claim, entitlement to backpay predicated on the finding the defendant had followed a practice of discrimination). Plaintiffs succeeded in proving that discrimination had been practiced against an identified class of black plaintiffs; in so doing an award of backpay was obtained. The mere fact that plaintiffs did not prevail against all defendants or under each and every legal theory raised initially does not mean that counsel is not to be compensated for all reasonable hours. As the court noted in Allen v. Terminal Transport Co. Inc., 486 F. Supp. 1195, 1201 (N.D. Ga. 1980) aff1d 653 F.2d 1016 (5th Cir. 1981) : All of the efforts of plaintiffs' attorneys were necessary and warranted in light of the law at that time. Indeed, as they note, plaintiffs'counsel would have been remiss in their duties as representatives of the class had they not pressed all these allega tions. The defendants are responsible for the situation that developed into this action, and in fairness to the plaintiff class and their counsel, the defendants must bear the burden of this litigation. 19/ continued minimal. Secondly, to do so on that or any of the losing claims would go against congressional policy. See, Maher v. Gagne, 448 U.S. 122, 133 (1980); H.R. Rep. No. 1558, 94th Cong., 2d Sess. 4 n. 7 (1976). Finally, most of the time spent pursuing the claim against a specific union, was directed toward proof of discrimination by any union and the pattern of practice of discrimination at the Company. See, e.g., Washington v. Kroger Co., 671 F.2d 1072, 1079 (8th Cir. 1982) (court recognizes that it is not always "practicable" to separate time between winning and losing defendants. - 15- In so holding the court relied on Johnson v. Georgia Highway Express, 488 F.2d 714, 719-720 (5th Cir. 1974), where the court noted the fairness of placing the economic burden of Title VII litigation defendants. In order to prove that pervasive discrimination existed at the Port Wentworth Plant, it was necessary to conduct discovery against all . . 20 / unions with which the Company had bargained.— The fact that no relief was granted against any unions aside from UPIU does not mean that any deduction of fees should be made. See, Disabled in Action v. Mayor and City Council of Baltimore, ____ F.2d ____ (4th Cir. August 9, 1982) Nos. 81- 1846, -1896, where, in its first ruling on this issue, the Circuit Court reversed the trial court, holding attorney 20/ It cannot be gainsaid that IBEW has had a history of discrimination against blacks. For years blacks were totally excluded from the union. (Grand Secretary Report 1900 Con vention of IBEW American Labor Unions' Constitutions and Proceedings. The microfilm Edition Part 1. 1836-1974 Reel 57, D3.) In a number of cases IBEW has been found to have engaged in unlawful discriminatory practices. Myers v. Gilman Paper, 556 F.2d 758 (5th Cir. 1977); United States v. International Brotherhood of Electrical Workers, Local NoT 38 , 428 F.2d 144 (6th Cir. 1970), United States v. Local Union No. 212, etc., 472 F.2d 634 (6th- Cir. 1973); Stamps v. Detroit Edison, et al., 365 F. Supp. 87 (E.D. Mich. 1973); United States v. Virginia Electric and Power Co., et al., 327 F. Supp. 1034 (E.D. Va. 1971). Nor was it unreasonable for plaintiffs to seek to keep the IBEW unions in the litigation as a Rule 19(a) defendant. - 16- time spent on TRO on which they lost should be compensated. Kennelly v. State of Rhode Island, 682 F.2d 282, 283 (1st Cir. 1982) (fees awarded for all time despite plaintiffs' failure to prevail against one set of defendants, the ground that discovery conducted was necessary part of plaintiffs' preparation for trial); Syvok v. Milwaukee Boiler Mfg. Co., 665 F.2d 149 (7th Cir. 1981) (time compensable for all claims, not clearly severable, since they prevailed on major issues); Busche v. Burkee, 649 F.2d 509, 521 (7th Cir. 1981) (court found significant that prevailed on major issues at trial despite failure to prevail against all defendants or on all issues). Nor was the claim of discrimination by the Company in the selection of supervisory/clerical staff. The findings of fact made after trial make clear that a prima facie case existed and the case was initially determined to be unrebutted. 12 EPD 1[ 11,191 at 5480. Until shortly before trial one found the "inexorable zero", Teamsters 431 U.S. at 342 n. 23. Two witnesses testified on this issue, and the statis tical evidence alone was sufficient to trigger the pursuit of that claim. Plaintiffs would respectfully submit that they are entitled to recover for all time reasonably spent, including that time spent pursuing claims against unions other than UPIU and for time spent on the supervisory/clerical issue, because plaintiffs prevailed in the "ultimate goal of the lawsuit." Rivera v. City of Riverside, 679 F.2d 795, 797 (9th Cir. 1982) (plaintiffs awarded fees requested, despite their failure to prevail against 18 individual defendants). - 17- (2) The Hourly Rate (a) Counsel should be paid at the rate prevailing in the area in which they practice In this litigation plaintiffs were represented by counsel who practice in both New York city and Savannah, Georgia. (Mike Bailer, formerly with LDF, now practices in San Francisco, where the rates are comparable.) Plaintiffs seek rates that would compensate counsel at the rate prevailing in the geographical area in which they practice, while defendants oppose this, contending that counsels are limited to the prevailing hourly rate in the Southern District of Georgia. The Company cites Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir. 1982) for the proposition that computation of out-of-town counsel's rate at a higher level than that in the district where the case is tried must be justified by a showing that plaintiffs were unable to secure local counsel. (Co. Mem. p. 27). The Company deliberately 21/misreads the court's holding on that issue.— The Court did note that a district court might have the discretion to 21/ Similarly, the Company's reliance on the cases cited as authority for the "settled proposition" they urge (Co. Memo, p. 27, n. 19) is misplaced. In most of those cases, the issue was not squarely before the court, because attorneys involved were local or nearly so, Neely v. City of Grenada, 624 F.2d 547 (5th Cir. 1980); Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496 (2d Cir 1980); or the opinion is silent as to whether attorneys were actually from out-of-town (Clanton v. Orleans Parish School Board, 649 F.2d 1084 (12th Cir. 1981). In Goff v. Texas Instruments, 429 F. Supp. 973, (N.D. Tex. 1977), the court was awarding fees to defendants under a Christiansburg standard rather than that applicable here and the Court was obviously considering the plaintiff's ability to pay, again a factor not relevant here. Id. at 978. In McPherson, 465 F. Supp. at 760, Wisconsin counsel was indeed compensated at Illinois rates; however, the court noted that "any difference between that rate will be considered in the adjustment factor." 18 inquire as to whether the services might have been performed by a local attorney, the plaintiff was not required to make a showing of diligent effort to find local counsel. 670 F. 2d at 768-69. In the instant case plaintiffs found competent local counsel who, despite his considerable experience, would have doubtless had difficulty in the management of a broad based class action litigation, while at the same time taking care of fee-generating matters in his practice.— ^ Instead, Mr. Farrington prudently associated himself with an organization possessing a "corporate reputation for expertise in presenting and the difficult questions of law that frequently arise in civil rights litigation." NAACP v. Button, 371 U.S. 415, 422 (1963). In addition, LDF was able to provide the financial resources to "engage in the extensive discovery . . . necessary to effectively pursue a class action." Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107, 115 (M.D. Ga. 1981).— / The legislative history recognized the need for 21/ continued In Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977) (Co. Mem. p. 28 n.20) the attorney simply as "Attorney B" was Charles Stephen Ralston, an LDF attorney who received a higher rate than "Attorney A," the local attorney. 22/ See, Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107, 115 (M.D. Ga. 1981) where the district court expressed ... its growing concern with the increasing tendency of some local attorneys to "bite off more than they can chew" in taking on employment discrimination cases, particularly when they undertake to pursue the case in the form of a class action. 23/ See also Lockheed Minority Solidarity Coalition v. Lockheed Missiles & Space Co., 406 F. Supp. 828, 830 (N.D. Cal. 1976), where the Court noted: 19 "fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." S. Rep. No. 1011, 94th Cong., 2d Sess. 6, citing Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. County of Los Angeles, 8 FEP Cases 244 (C.D. Cal. 1974); Swann v. Charlotte- Mecklenburg Bd. of Educ., 66 G.T.F. 483 (W.D.N.C. 1975). Surely, compensating attorneys at the hourly rate that reflects the high overhead of practicing in New York is in keeping with the legislative intent. See also Jones v, Armstrong Cork Co., 630 F .2d 324, 325 (5th Cir. 1980).— ^ To do as defendants suggest would be to penalize plaintiffs for choosing out-of-town counsel, Dunten v. Kibler, 518 F. Supp. at 1152 n.5. 23/ continued Litigation in this area often involves extraordinarily complex legal and factual issues that many attorneys would simply be unable to handle successfully. The important individual and societal issues at stake in such litigation may not be adequately protected unless attorneys possessing the requisite skills can be induced to take Title VII cases. 24/ Additionally, it should be noted that both defendants have relied on out-of-town counsel (New York and Chicago) to mount a proper defense. See Chrapliwy, 670 F.2d at 768 n. 18. 20 (b) Current Rates May Be Applied to Compensate for Delay in Payment Plaintiffs have applied for compensation at current hourly rates without regard to when the work was performed on the ground that to do so was more convenient than 25/adjusting through use of a multiplier— or directly adjusting for inflation by reference to the consumer price 26/index.— ' See In re Ampicillin Antitrust Litigation, 81 F.R.D. 395 (D.D.C. 1978): The rates used are based upon current normal billing rates, despite the fact that the services were provided over an eight-year period. This use 25/ see, e.g., National Ass'n of Concerned Vets v. Secretary of Defense, 675 F .2d 1319, 1328 (D.C. Cir. 1982) ("The lodestar may be adjusted upward to compensate counsel for the lost value of the money he would have received resulting from the delay in receipt of payment. . . ."); Environmental Defense Fund, Inc, v. Environmental Protection Agency, 672 F.2d 42, 59-60 (D.C. Cir. 1982) ("We agree that there should be a modest adjustment, in the neighborhood of 15- 20%, to reflect 'benefits to the public from suit' . . . and the delay in receipt [six months] for services rendered."); Copeland v. Marshall, 641 F .2d 880, 893 (D.C. Cir. 1980) (en banc); Northcross v. Board of Education of Memphis County Schools, 611 F.2d 624, 640 (6th Cir. 1979), cert.denied, 447 U.S. 911 (1980); see also, North Slope Borough v. Andrus, 515 F. Supp. 970 (increase of lodestar by 15% to account for inflation; Harkless v. Sweeney ISD, 466 F. Supp. 457, 472 (S.D. Texas 1978), aff'd 608 F.2d 594 (5th Cir. 1979) (prejudgment interest on out-of-pocket costs and expenses); Morrow v. Finch, 642 F.2d 823, 826 (5th Cir. 1981) (prejudg ment interest on attorney's fees for end of each historic period). 26/ See Northcross, 611 F.2d at 640. There are two ways to compensate for inflation and the lost potential for investment: through use of the consumer price index or by use of the prime rate. An explanation of these adjustments and the results on the rates requested will be submitted with plaintiffs' supplemental motion for fees. 21 of current rates simplifies the Court's task and roughly couterbalances the inflatibnary loss suffered by the attorneys because of the long delay in the recovery of their fees. 81 F.R.D. at 402. A similar rationale was used by the court in McPherson v. School District #186, 465 F. Supp. 749 (S.D. 111. 1978) [§ 1988 and ESAA]: The attorneys here are being compensated for past services at current rates in order to account for two factors: first, rising overhead and expenses have forced attorneys to increase their fees over the past four years and second, increasing inflation has reduced the purchasing power of the dollars earned in a prior year but not received until the present. 465 F. Supp. at 760. See also, Northcross on remand, ____, F. Supp. ____ , (Slip. op. at 13. Plaintiffs' counsel have not received any compensation for work performed in this litigation begun in 1971. Compensation of plaintiffs' attorneys at historical rates with no adjustment, will mean that counsel will not be receiving the "adequate compen sation" envisioned by the various fee statutes Knighton v. Watkins, 616 F.2d 795, 801 (5th Cir. 1980), and would constitute an incentive for defendants to protract litigation^ 27/ UPIU attempts to make the disingenious argument that Farrington, Hill and Teitelbaum have received much of the compensation due them. As discussed infra pt. (3)(a), this argument ignores the fact that LDF has not received any of the litigation expenses it has advanced for the entire duration of this lawsuit. 22 (c) A Single Rate Should be Applied To All Time Expended The Company proposes a different compensation for work at "non-legal," such as travel time (Co. Mem., p.20) at a rate equal to 50% of the historical rate (^d., p.22). Yet, as the court noted in McPherson, "a lawyer's time is his stock in trade." 465 F.Supp. at 758. The Company suggests a lower rate for a category it calls "informal communications," con- 28/ferences with witnesses, meetings and attorney conferences.— Such a broad category would include much of the preparation for trial, eventual settlement and devising of legal strategy for this litigation. The utility of attorney conferences is obvious, "on the theory that attorneys must spend at least some of their time conferring with colleagues, particularly their subordinates, to ensure that a case is managed in an effective as well as efficient manner." National Assn, of Concerned Vets., 675 F.2d 1337 (D.C. Cir. 1982). As discuss ed, in the post-Teamsters phase, attorney conferences and meetings with class members resulted in avoidance of an evidentiary hearing and eventual settlement of backpay matters. Interviewing of witnesses for trial is of course an important part of trial preparation. 28/ Additionally, the Court would be aided in deciding this matter by information on the manner in which counsel for defendants were compensated. 23 The legislative history makes clear that counsel in civil rights cases are to be compensated in the same manner as, for example, those attorneys handling antitrust and secur ities litigation. Differential rates are not normally applied 29/m such cases.— Further, in each of three cases cited with approval in the legislative history, Stanford Daily, Davis, and 30/Swann, the same rate was applied to all work. The time spent on this litigation was reasonable and should be compensated at a flat hourly rate for all work performed. 29/ See, e.g., Mills v. Eltra Corp., 663 F.2d 760 (7th Cir. 1981) (flat rates of $150/hour awarded); In re Cenco, Inc., 519 F.Supp. 322 (N.D. 111. 1981) (flat rates of up to $150/hour); Van Gimmert v. Boeing Co., 516 F.Supp. 412 (S.D.N.Y. 1981)(current flat rates up to $160/hour); Krasner v. Dreyfus Corp., 90 F.R.D. 665 (S.D.N.Y. 1981) (flat rates of $65-200/hour); In re Gas Meters, 500 F.Supp. 956 (E.D. Pa. 1980) (flat rates of $50-250/hour); Trist v. First Federal Savings & Loan Assn., 89 F.R.D. 8 (E.D. Pa. 1980) (flat rate of up to $150/hour); Charal v. Andes, 88 F.R.D. 265 (E.D. Pa. 1980) (flat rates of $50-250/hour). 30/ See also, Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir. 1981) ; Harceg v. Brown, 536 F.Supp. 125 (N.D. 111. 1982); Laje v. R.E. Thomason General Hospital, 502 F.Supp. 185 (W.D. Tex. 1982) , aff'd, 665 F.2d 724 (5th Cir. 1982); Halderman v. Pennhurst State School and Hospital, 533 F.Supp. 649 (E.D. Pa. 1982) ; cases summarized in 6 Class Action Reports, No. 2 (1980). 24 (3) Plaintiffs are Entitled to a Multiplier As plaintiffs noted in their fee application star figure should be enhanced by a multiplier to for contingency and quality factors.— ^ any lode- account (a) Contingency Only last year, the Fifth Circuit "[1 lawyers who are to be compensated o victory expect and are entitled to be cessful than those who are assured of of result" (emphasis added: en banc stated that nly in the event of paid more when suc- compensation regardless No one Johnson criterion should be stressed to the neglect of others. However, because the fee in this case was contingent on success, it is appropriate for the court to consider Johnson criterion number six, "whether the fee is.fixed or contingent." This reflects the provisions of the ABA Code of Professional Responsibility, DR 2 106(B)(8), and the practice of the bar. Lawyers who are to be compensated only in the event of victory expect and are entitled to be paid more when successful than those who are assured of compensation regardless of result. This is neither less nor more appropriate in civil rights litigation than in personal injury cases. The standard of compensation must enable counsel to accept apparently just causes without awaiting sure winners. Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981.— ^ 31/ Of course, the court, for delay in payment by the lodestar be calculated with rates; however, contrary to do not seek to "double-dip" in its discretion, may account use of a multiplier, should the reference to unadjusted historical defendants' suggestion, plaintiffs for delay. 32/ Failure to consider the contingent nature of a case may Be error. Knighton v. Watkins, 616 F.2d 795, 800-80 (5th Cir. 1980); Miller v. Mackey International, Inc., 515 F.2d 241 (5th Cir. 1975) . - 25- Harris v. City of Fort Myers, 624 F.2d 1321, 1325-1326 (5th Cir. 1980). Other circuits agree that a contingency is ap propriate in some cases. Northcross v. Board of Education, 611 F.2d 624, 638-39 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980) (normal hourly rates increased by 10% to reflect contingency of nonpayment); Manhart v. City of Los Angeles, 652 F.2d 904, 908 (9th Cir. 1981) (1.32 enhancement factor for complexity, uncertainty and results). Indeed, in two of the three cases that the legislative history of § 1988 indicates "correctly applied" the Johnson v. Georgia Highway Express, Inc. , criteria, a contingency above the hourly base rates was authorized. Stanford Daily v. Zurcher, 64 F.R.D. 680, 686-688 (N.D. Cal. 1974); Davis v. County of Los Angeles, 8 E.P.D. 11 9444 at p. 5048 (C.D. Cal. 11974, cited in S. Rep. No. 74-1011, supra, at 6. Moreover, the same legislative history states that the amount of the fee should be "governed by the same standards which prevail in other types of equally 3 2/complex federal litigation, such as antitrust cases," .id.— * & 3 2/ See, e.g. , Lindy Bros. Builders, Inc, v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc), cited with approval in Knighton v. Watkins, supra, 616 F.2d at 801; Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1977) (enhancement of 33%). - 26- Recent cases in which contingency or incentive awards have been found appropriate include Wells v. Hutchinson, 499 F. Supp. 174, 211 (E.D. Tex. 1980), an employment discrimination action against the Texas Agricultural Extension Service and Panola County in which the court ordered enhancement of the base rate by a factor of two. It is apparent on the record that plaintiff has no obligation to pay attorney's fees and that plaintiff's counsel's right to a fee would only be realized through a court award. When plain tiff's counsel accepted this case, his prospect of recovery was totally dependent upon victory and a court award. Moreover, at the outset of the litigation, it was not at all obvious that plain tiff, as prevailing party, would be entitled to attorney's fees. Id. Keith v. Volpe, 501 F. Supp. 403 (C.D. Cal. 1980) (a challenge to a highway project filed in 1971 pursuant to § 1983 in which the court found that "a multiplier of 3.5 properly reflects the con tingent nature of the case and the quality of counsel's efforts as well as delay in payment and impact of inflation in making a total award of attorneys' fees of $2,204,534.99); Carter v. Shop Rite Foods, Inc., 503 F. Supp. 680, 693 (N.D. Texas 1980) (an employment discrimination action in which enhancement of 33% and 11% above the $90 per hour noncontingent hourly rate was found appropriate for two stages of the litigation); Northcross v. Board of Education of Memphis, supra (10% enhancement of normal hourly rates in school desegregation action); Parker v. Mathews, 411 F. Supp. 1059 (D.D.C. 1976), aff'd sub nom. Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977) (base fee award increased by 25%); Western Addition Community Org. v. Alioto, C-70-1335 WTS (N.D. Cal. 1974) (employment discrimination action in which base rates of - 27- $100 per hour increased by incentive award of 100%) Thompson v. Cleland, 74-C-3719 n.d. 111. 1979) (employment discrimina tion action in which incentive multiplier of 2 used to increase base rates of between $55-$85 per hour); Kelsey v. Weinberger, C.A. 1660-73 (D.D.C. 1975) (faculty desegregation suit against HEW in which 50% enhancement was added to $100 per hour base rate for all counsel). Defendants concede that this litigation at the very least took on a contingent aspect after Teamsters. Thus at a minimum a multiplier should be applied to all post- 33/Teamsters hours.— Both defendants contend that the fact that LDF were salaried somehow makes a difference as to contingency. However, we know of no lawyer employed who does not draw a salary, partnership share, or other compensation while his firm prosecutes a case on a contingent basis. To do as defendants suggest would mean treating salaried public interest attorneys on a different basis than private practitioners -- contrary to established law. See, New York Gaslight Club v. Carey, 447 U.S. 54, 70 n. 9 (1980), citing Reynolds v. Coomey, 576 F.2d 1166 (1st Cir. 1978) and Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976) with approval; Harris v. Tower Loan, 609 F. 2d 120 , 123-24 (5th Cir. 1980); Morrow v. Finch, 642 F.2d 823, 825 (5th Cir. 1981); Harkless v. Sweeney, supra, Northcross, 611 F.2d at 637. Similarly the fact that attorneys 33/ See also Lamphere v. Brown University, 610 F.2d 46, 47 (1st Cir. 1979) (10% enhancement); Gonzales v. Van's Chevrolet, Inc. 498 F. Supp. 1102 (D. Del. 1980) (enhancement of nearly 50%); Ste. Marie v. Eastern Railroad Assn., 497 F. Supp. 800 (S.D.N.Y. 1980) (enhancement of 10%); McPherson v. School District No. 186, 465 F. Supp. 749 (S.D. 111. 1978) (lead counsel's normal rate increased by $20 per hour). - 28- Teitelbaum, Hill and Farrington may have received some compensa tion does not entirely remove the contingent aspect of this litigation. As the court noted in Env. Def. Fund, 672 F.2d at 63-64: The 'contingency' in question is not whether [the attorneys retained to litigate the fee issue on a contingency basis] will recover under their agreement with EDF, but whether EDF will recover fees under [the applicable fee statute]. Thus, throughout this litigation, LDF ran the risk of receiving no compensation whatsoever if plaintiffs had not prevailed, and it is sufficient that there was "at least some risk of failure." Concerned Vets, 675 F.2d at 1333.— ^ (b) Preclusion of other work As the affidavits of counsel and discovery provided by applicants have indicated, each of the attorneys for whom compensation is sought have been precluded from performing- 34/ UPIU makes several other arguments, none of which has any merit. First, it is argued that somehow because LDF is an organization that consists of lawyers and non-lawyers, it is not entitled to fees (UPIU Memo, p. 5, n. 3). The Carey decision is a complete answer to this patently absurd propo sition. (Additionally, it may be noted that LDF is chartered under New York State laws and is authorized to practice law as a corporation, whose board, incidentally, is composed primarily of lawyers.) Cf. Watkins v. Mobile Housing Board, 632 F.2d 565 (5th Cir. 1980) Secondly, UPIU contends that Messrs. Farrington and Hill should be limited to an hourly rate based on the advances they have received from LDF (i.e., $50 and $100 per day). This argument fails on two counts: it would be tantamount to taking into account the salaries of public interest attorneys, an action that would clearly be contrary to established caselaw, see, cases cited in text and relied upon by the district court in Allen v. Terminal Transport Co., Inc., 486 F. Supp. 1195, 1199 (N.D. Ga. 1980) (attorney in private practice, compensated for expenses plus $30 per hour, held not limited to that amount). In addition, - 29- other work, some of which may have been fee-generating, in the case of private practitioners, such as Farrington, Hill and Teitelbaum, or some of which may have been equally meritorious litigation that would have resulted in court awarded fees. This consideration does not lose force because LDF is a public interest organization, as the court noted in West v. Redman, 530 F. Supp. 546, 549 (D. Del. 1982) ("Because funding is limited and demand for representation exceeds the ability to provide it, decisions must constantly be made on the costs and benefits of various alternative time allocations.") (c) Other Johnson factors Courts have taken several factors, which are present here, into account in determining a contingency or incentive award: (a) contingency, e.g . , Jones v. Diamond, supra, Harris v. City of Fort Myers, supra; Wells v. Hutchinson, supra; (b) results obtained, e. g. , Keith v. Volpe, supra; Kelsey v. Weinberger, supra; (c) the hard-fought and protracted nature of the litigation, Keith v. Volpe, supra, — ' (d) 34/ continued as the court noted in Clark v. American Marine Corp., 320 F. Supp. at 711, "[t]he criterion for the court is not what the parties agreed but was is reasonable." Nor is UPIU correct in its contention that any amount finally awarded for Farrington or Teitelbaum's time should be offset by amounts advanced by LDF, since as stated earlier all money will be paid by LDF. 35/ The factor is decisive in many antitrust cases. See, e.g., Northeastern Tex. Co. v. A.T.T., 497 F. Supp. 230, 252 (D. Conn. 1980) (30% enhancement); In re THC Financial Corp. Litigation, 86 F.R.D. 721 (D. Hawaii 1980) (1.4 and 1.5 contingency multipliers); Jezarian v.. Csapo, 483 F. Supp. 383 (S.D.N.Y. 1979) (2.0 and 1.5 enhancement factors); Hew Corp. v. Tandy Corp., 480 F., Supp. 758 (D. Mass. 1979) (1.25 - 30- the quality of the representation, e.g., Keith v. Volpe. 36/sjjjpra; and (e) the novelty of the issues, Kelsey v. Weinberger, supra. (4) Plaintiffs Are Entitled To Recover All Costs And Expenses Both defendants choose to ignore unequivocal law of the Circuit that costs and expenses are recoverable. Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981) (en banc) (and authorities cited) (expert witness fee); Fairley v. Patterson. 493 F.2d 598, 606 n. 11, 607, n. 17 (5th Cir. 1974) ("Court costs not subsumed under federal statutory provisions normally granting such costs against the adverse party, Fed. R. Civ. P. 54(d) . . ., are to be included in the concept of attorney's fees," and "In public interest litigation, . . . the.expenses of preparing and conducting the litigation require direct out-of-pocket expenditures by a party, which should be com pletely recoverable") (Title VII case);- see also Harkless v. Sweeney ISP, supra, 466 F. Supp. at 465, 469-470.— ^ 35/ continued enhancement although counsel had received $58,400 in retainers); Weiss v. Drew National Corp., 465 F. Supp. 548 (S.D.N.Y. 1979) (15% enhancement); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410, F. Supp. 680 (D. Minn. 1975) (2.0 and 2.5 enhancement factors. 36/ Quality of representation, along with contingency, is often cited in antitrust and securities cases. See, e.g., In re Gas Meters Antitrust Litigation, 500 F. Supp. 956 (E.D. Pa. 1980) (2,5 multiplier); Charal v. Andes, 88 F.R.D. 265 (E.D. Pa. 1980) (1.5 multiplier); In re Ampicillin Anti- trust Litigation, 81 F.R.D. 395 (D.D.C. 1978) (1.5 multiplier In re Equity Funding Corp. of America Securities Litigation, 438 F. Supp. 1303 (C.D. Cal. 1977) (factor of 3); In re Gypsum Cases, 386 F. Supp. 959 (N.D. Cal. 1974), aff'd, 565 F.2d 1123 (9th Cir. 1977) (factor of 3). 37/ Legislative history of § 1988 is clear. Among the three cases which Congress considered to have "correctly applied - 31- Indeed, the Court of Appeals has held that interest on out- of-pocket costs and expenses is permitted by § 1988. Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980), modified on rehearing, OO /636 F.2d 942 (5th Cir. 1981.— 7 Similarly, plaintiffs are entitled to recover fees paid to expert witnesses. Berry v. McLemore, 670 F.2d 30, 34 (5th Cir. 1982), citing Jones v. Diamond, 638 F.2d 1364, 1382 (5th Cir. 1982). 37/ continued Johnson v. Georgia Highway Express criteria were Davis v. County of Los Angeles, 8 E.P.D. M 944 (C.D. Cal. 1974), and Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C. 1975), S. Rep. No. 94-1101, supra, at 6, in which courts awarded costs and expenses without comment. The bill's sponsor in the House of Representatives and the author of the House report plainly explained that "the phrase 'attorney's fees' would include the values of the legal services provided by counsel, including all incidental and necessary expenses incurred in furnishing effective and competent repreentation." 122 Cong. Rec. H. 12159-12160 (daily ed., Oct. 1, 1976) (Rep. Drinan); see also, 122 Cong. Rec. H. 12150 Z(daily ed., Oct. 1, 1976) (Rep. Anderson, floor manager). 38/ In contrast, the Sixth Circuit has ruled that certain out-of-pocket costs and expenses are not permitted under 42 U.S.C. § 1988, but are permitted under Rule 54, Fed. R. Civ. Pro. and 28 U.S.C. § 1920. Northcross v. Board of Education, supra, 611 F.2d at 639-640. Rule 54(d) states that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." As we have shown Teitelbaum's participation in the two court appearances was reasonable and in accord with the requirement of adequate representation; therefore, his expenses should be reimbursed by defendants. With regard to Bailer's expenses, the Company resorts to precisely the sort of "nit-picking" one judge has stated should not be "countenanced." Concerned Vets., 675 F.2d at 1339 (Tamm, J., concurring). The expenses the Company would disallow amount a total of $15.18. Quite apart from the in significance of the amount, we would submit that the reasoning is incorrect. First, the length of the trial necessitated Bailer's presence away from his home, and it is not unreasonable that additional laundry expenses would be incurred. The $7.40 taxi expense incurred is rightfully reimbursed as it came at the end of an uncontested trip to Savannah. The fact that Bailer chose to go on vacation instead of returning to New York (where, incidentally, a taxi ride would have been considerably more costly) is irrelevant. - 32- Conclusion Based on the foregoing and the reasons set forth in plaintiffs' motion for fees, plaintiffs are entitled to recover their requested attorneys' fees and costs, in addition to fees for time expended during 1982 and additional costs and expenses Respectfully submitted, JACK GREENBERG JUDITH REED10 Columbus Circle Suite 2030 New York, New York 10019 HERBERT TEITELBAUM Teitelbaum & Hiller 1140 Avenue of the Americas New York, New York 10036 Attorneys for Plaintiffs - 33-