Miller v. Continental Can Company Plaintiffs' Reply Brief to Defendants' Opposition to Plaintiffs' Motion for Fees and Costs

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF GEORGIA 

SAVANNAH DIVISION

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CHARLIE MILLER, et al.,
Plaintiffs, 

-against-
CONTINENTAL CAN COMPANY, et al.,

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Civil Action No. 2803 .
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De fendants.
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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

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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) .

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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).

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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 .

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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

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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.

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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).

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(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-