Keyes v. Denver School District No. 1 Plaintiffs' Memorandum of Law

     [||3ecf815c-d4d3-41fd-b894-63c281e1e0db||] - CIATION AND MOORE SCHOOL LAY 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. C-1499 

WILFRED KEYES, et al., 

Plaintiffs, 

VS. 

SCHOOL, DISTRICT NO. 1. Denver, 

Colorado, et al., 

PLAINTIFFS' MEMORANDUM OF 

LAW IN SUPPORT OF ALLOWANCE 

OF ATTORNEYS' FEES AND 

EXPENSES OF PLAINTIFFS' CLASS 

Defendants, 

CONGRESS OF HISPANIC. EDUCA- 
TORS, et al.; 

MONTBELLO CITIZENS' COMMITTEE, 
INC., 

MOORE SCHOOL COMMUNITY ASSO- 

ADVISORY COMMITTEE, 

UNITED PARENTS OF NORTHEAST 

DENVER, a non-profit corpora- 
tion, et al., 

CITIZENS ASSOCIATION FOR 

NEIGHBORHOOD SCHOOLS, an 

unincorporated association, 

CONCERNED CITIZENS FOR 
QUALITY EDUCATION, 

Intervenors. 

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I. Factual Basis for Application 

This Court has heard and decided virtually all of the 

proceedings in the action at the trial court level. Great 

weight is to be accorded to the trial court's evaluation and 

judgment with respect to attorney's fees by virtue of its 

‘first-hand knowledge of the case and the conduct of the case 

by counsel. Simler v. Conner, 352 F.2d 138 {10th Cir. 

1965), cert. denied 3533 U.S. S28, Continental Baking Co. Yo. 

The O14 Homegtead Bread Co., 476:F.24 97.(10th Cir, 1973). 



A. The History of the Case 

It is perhaps only necessary to recall the immense 

burden wnieh this case has placed upon this Court and counsel 

for the past six years. The case was filed on June 19, 

1969, and set for hearing on plaintiffs' motion for prelim- 

inary injunction. After a month of intensive trial prepa- 

ration, briefing and discovery, plaintiffs in five days of 

trial presented, primarily through expert witnessess George 

Bardwell and Paul D. Klite an extensive analysis of the 

segregative actions of the school district in Park Hill over 

a l0-year period, including gerrymandering of school bound- 

aries, discriminatory teacher assignments and use of mobile 

units, rescission of desegregation resolutions, and dis- 

criminatory decisions regarding the location and size of new 

schools. Plaintiffs also presented testimony on the effects 

of segregation on school children through Dr. Dan Dodson. 

The Court preliminarily enjoined defendants from the rescis- 

sion of the desegregation resolutions and placed the Resolutions 

into effect.” 303 F.Supp. 279 (July 31, 1969). 

The defendants, on July 31, 1969 requested this Court 

to stay its preliminary injunction; encont for a temporary 

10-day stay, the request was denied. Thereafter defendants 

sought a stay in the Court of Appeals. On August 7, 1969 

the Appellate Court vacated the injunction and remanded the 

- case for consideration of the applicability of 42 U.S.C. 

§ 2000c-6(a), and questioned whether the injunction met the 

requirement of sufficient specificity. 

A hearing was held the same day upon the remanded 

issues, and on August 14, 1969 this Court issued its Supple- 

mental Findings, Conclusions and Temporary Injunction, 303 

P.Supp. 289. 



® ® 
Thereafter, on August 26, 1969 the Court of Appeals 

granted defendants' motion for a stay. : 

On August 27, 1969 plaintiffs filed with the Supreme 

Court 2 Hotion to vacate the stay and reinstate the District 

Court's order, which the Court granted on August 29, 1969 

(396 U.S. 1215). This Court has not had the opportunity to 

judge the extent and quality of the efforts of plaintiffs’ 

counsel in those appellate proceedings and the plaintiffs 

pleadings and briefs are therefore attached hereto as Exhibits 

1 and 2. : 

The defendants then attempted to circumvent and frustrate 

the Supreme Court's reinstatement of the injunction by 

requesting the Circuit Court to rewrite its opinion to 

include a finding that this Court abused its discretion in 

- granting the injunction. After hearing cral argument the 

Court of RovealS denied the request on September 15, 1969. 

Plaintiff's memorandum brief is attached hereto as Exhibit 3. 

The defendants next filed motions to dismiss the 

complaint, which after extensive briefing and argument were 

denied by this Court on October 17, 19609. 

During the period from mid-September of 1969 to February 

of 1970 plaintiffs' counsel and their expert and other 

witnesses reviewed thousands of documents, conducted other 

extensive discovery, did extensive research on the legal 

issues involved, and prepared hides of exhibits, all 

leading to 14 days of trial before this Court in February of 

1970. This Court heard detailed statistical analysis of 

avery aspect of the school system bearing on the consti- 

tutional rights of the class, and testimony on the school 

board's actions over several decades. The Court again found 



de jure segregation affecting a very substantial number of 

the district's schools (the "Resolution Schools") and ordered 

them desegregated. It also found a denial of equal educa- 

tional opportunity throughout the other predominately- 

minority schools in the district and ordered a hearing on 

measures to remedy that condition, 313 F.Supp. 61 (March 21, 

1970). ; 

Four days of hearings on remedy were held in May of 

1970. Again the plaintiffs presented extensive evidence and 

expert testimony from some of the nation's foremost author- 

ities to demonstrate the measures which were necessary to 

overcome the unconstitutional denial of equal protection 

Cound by the Court and assisted the Court in analysis of the 

efficacy of the alternatives to desegregation advocated by 

defendants. The Court made permanent its injunction to 

desegregate the Resolution schools and ordered the parties 

to submit desegregation plans for relief of 8h6 balance of 

the system, 313 F.Supp. 90 (May 21, 1970). Defendants 

applied to the Court of Appeals for a complete stay of this 

Court's action, which was denied. 

The defendants appealed this Court's order to the Court 

of Appeals. Again the case was extensively briefed and 

argued in August of 1970. Plaintiffs' briefs in connection 

with the appeal are included with this application for the 

court's information as Exhibits 4 and 5. 

During the pendency of the appeals this Court ordered 

. the parties to submit desegregation plans for the inferior 

schools and scheduled a hearing for selection and adoption 

of a plan. 



In March, 1971 the defendants again applied to the 

Court of Appeitls for stay, as they wished to AVOLE complying 

with this Court's orders for submission of desegregation 

plans. On March 26, 1971, the Court of Appeals granted the 

stay. On March .29, 1971 plaintiffs filed a motion to vacate 

the stay with the United States Supreme Court. The Court, 

on april 26, 1971, vacated the stay. 402 U.S. 182 (1971) 

(per curiam). Plaintiff's pleadings and briefs in these 

proceedings are attached hereto as Exhibits 6 and 7. 

In May 1971, pursuant to this Court's reinstated orders, 

a 3-day hearing was held considering the alternative deseg- 

~regation plans submitted by the parties, and the Court 

selected plans for implementation in September, 1971. 

However, a few weeks after the May 1971 hearing the LSSiANCS 

of the opinion of the Court of Appeals on June 11, 1971, 

nullified the implementation of those COMER LAY orders. 445 

F.24 990. 

Thereafter, on June 23, 1971, plaintiffs filed a motion 

seeking an order from this Court requiring a plan for the 

desegregation of Hallett and Stedman Elementary Schools in 

September, 1971. Defendants resisted this motion, claiming 

the Court Tached Junisaiotion: This Court denied the motion 

without prejudice. on July 28, 197), and at the Court's sug- 

gestion plaintiffs filed with the Court of Appeals a "Motion 

for Clarification" on August 2, 1971, which again was opposed 

by defendants. 

On August 30, 1971 the Court of Appeals granted plain- 

tiffs' Motion for Clarification, holding that this court had 

jurisdiction to consider desegregation plans for Hallett and 

Stedman. 

On September 9, 1971 the Court held a hearing on Hallett 



and Stedman desegregation plans and ordered the selected 

plan implemented by November 8, 1971. The order was reduced 

to writing and entered on September 28, 1971. Defendants 

filed a notice of appeal, which was subsequently voluntarily 

dismissed when pursuant to stipulation the order was modified 

and implementation rescheduled. The new order for Hallett 

and Stedman was entered October 19, 1971 and was implemented 

at the beginning of the second semester in January 1972. 

Meanwhile, plaintiffs on October 8, 1971 petitioned for 

certiorari in the Supreme Court of the United States, which 

Petition is included with this application as Exhibit 8. The 

Court granted certiorari on Janvary 17, 1972, 404 U.S. 1036. 

The lengthy record in this case was designated and 

printed, -and briefs, attached hereto as Exhibit 9 and 10 were 

submitted by Plaintiffs' counsel. Plaintiffs' counsel 

argued the case to the Court on October 12, 1972. 

In its first major decision in a school desegregation 

‘case outside the South the Supreme Court on June 21, 1973 

affirmed this Court's findings of segregation in the Park 

Hill schools and remanded the case for determination of, 

among other things, whether the Park Hill area was separate 

and unrelated to the rest of the city. 93 8.Ct. 2686. 

While defendants conceded that Park Hill was not 

separate and unrelated, they put the plaintiffs to four 

additional days of trial in December of 1973, during which 

they attempted to reopen and retry the fundamental issues of 

segregation of the system already determined by this Court, 

the Court of Appeals and the Supreme Court. The Court 

determined that Park Hill was not separate and unrelated and 

therefore that the district was a dual school system under 



yt 

the Supreme Court's decision, requiring district-wide deseg- 

regation, 368 F.Supp. 207 (December 11, 1973). 

Twelve more days of trial on plans to desegregate the 

system were conducted in February of 1974. Because the 

plans presented by the school district were predictably and 

patently inadequate under the Court's decision in Swann v. 

Charlotte-Mecklenburg, 402 U.S. 1 (1971) plaintiffs pre- 

sented desegregation plans and extensive testimony and 

evidence on the workable and feasible nature of the many 

facets of desegregation plans, including pairing and trans- 

portation. The Court, at the recommendation of plaintiffs’ 

counsel, hired its own expert, and drew its own final plan, 

which was finally ordered on April 17, 1974, 380 F.Supp. 

673. 

The defendants' recalcitrance in carrying out the orders of 

this Court atid obs irendrone resistance have been consistent 

throughout the history of the case, extending even to the 

issues presented by this motion for award of fees. Thus 

plaintiffs' counsel, after the Bradley decision, infra, 

inquired of the defendants, through their counsel, as to 

‘whether (1) defendants would be willing to stipulate that 

plaintiffs were entitled to an award of attorney's fees 

under 20 U.S.C. § 1617, and (2) whether defendants would be 

willing to discuss the amount of such fees in the hope of 

arriving at a satisfactory stipnimues recommendation to the 

Court. These offers were rejected by the defendants, neces- 

sitating this legal memorandum and a hearing on the questions 

of entitlement to and the proper amount of such attorneys’ 

fees. | 

B. The Nature of the Case 

This case has not been ordinary or routine litigation. 



It has commanded extraordinary efforts and imposed enormous 

burdens on the Court and counsel, often on the shortest of 

notice. It has required considerable personal sacrifice and 

risk to plaintiffs, their counsel and Che Court to effect 

the transition to a nondiscriminatory school system. The 

first—-named plaintiff in this case had his home bombed. 

Threats to life, family and property have been common. 

Serving to vindicate a national policy of the highest priority 

has demanded extraordinary professional service as officers 

of the Court, deserving of at least the level of compensation 

paid defendants' attorneys, who throughout the case have 

been assured of payment for their services, and of more than 

attorneys are routinely paid for ordinary litigation, which 

involves no contingency that compensation for services will 

not be forthcoming. 

The Court is further asked to consider whether the 

school board's conduct and use of counsel and judicial 

process constitutes obstinate noncompliances with the law 

and delay. Plaintiffs submit that in numerous instances it 

has. Among those instances are (1) attempting to circumvent 

the Supreme Court's reinstatement of the Court's order in 

the Court of Appeals, (2) resisting the desegregation of 

. Hallett and Stedman, (3) knowingly submitting an inadequate 

plan for relief, (4) contesting minor expenditures and 

actions of the Community Education Council, (5) seeking to 

retry issues already decided by the Supreme Court, and (6) 

contesting any allowance of attorneys fees in this case 

despite the clear pronouncement of the Supreme Court in Bradley 

v. Richmond School Board, 416 U.S. 696 (1974). 



311. Plaintiffs' Counsel Are Entitled to a Reasonable 

Attorney's Fee Under § 718 of Title VII, 20 
U.S.C. 5 1617. 

Section 718 of the Education Amendments of 1972, which 

became effective on July 1, 1972, provides that: 

Upon the entry of a final order by a court 
of the United States against a local educa- 
tional agency, a state (or any agency thereof), 
or the United States (or any agency thereof), 
for failure to comply with any provision of 
this chapter or for discrimination on the 
basis of race, color, or national origin in 
violation of title VI of the Civil Rights 
Act of 1964, or the Fourteenth Amendment 
to the Constitution of the United States as 
they pertain to elementary and secondary edu- 
cation, the court, in its discretion, upon 
a finding that the proceedings were necessary 
to bring about compliance, may allow the 
prevailing party, other than the United 

States, a reasonable attorney's fee as part 
Of the costs. 20:.0.8.C. § 1617 

The Supreme Court of the United States has ruled under 

this section that in school desegregation cases "the successful 

plaintiff 'should ordinarily recover an attorney's fee 

unless special circumstances would render such an award 

unjust.'" Northcross v. Board of Education of the Memphis 

City Schools 412 U.S. 427, 428 (1973). Plaintiffs! counsel 

know of no such special circumstances in this case. 

The applicability of § 718 to allow attorney's fees in 

circumstances nearly identical to those in this case was 

explored in depth by the Supreme Court in Bradley v. Richmond 

School Board, supra, which deserves treatment at some length 

here. In Bradley the district court had awarded attorney's 

fees to plaintiess in the amount of more than $43,000 for 

Sekvices rendered between March 10, 1970 and January 29, 

1971, and expenses of more than $13,000. The latter date 

was the date on which the district court had rejected the 

plaintiffs' proposed desegregation plan. On April 5... 19373 

the district court had ordered into effect the third plan 

proposed by the School Board. 



As the Supreme Court later noted, the district court. 

had based its award of attorney's fees, made on May 26, 

1971, and prior to the enactment of Section 718, on two 

grounds rooted in its wendicional equity powers, the first 

ground being: 

« « « the propriety of awarding counsel 
fees when the evidence revealed obstinate 
noncompliance with the law or the use of 
judicial process for purposes of harassment 
or delay in affording rights clearly owed. 
[notes omitted] Bradley v. Richmond School 
Board, 416 U.S. at 706. 

In that connection, the Court stated that: 

While reluctant to characterize the 1liti- 
gation engendered by that default as un- 
necessary in view of the ongoing develop- 

ment of relevant legal standards, the 
court observed that the actions taken and 
the defenses asserted by the Board had 
caused an unreasonable delay in the deseg- 
regation of the schools and, as a result, 
had caused the plaintiffs to incur substan- 
tial expenditures of time and money to 
secure thelr constitutional rights. Id. at 707. 

noting from the district court that 

It is no argument to the contrary that 
political realities may compel school 

administrators to insist on integration 
by judicial decree and that this is the 
ordinary, usual means of achieving com- 
pliance witli constitutional desegregation 
standards. If such considerations lead 
parties to mount defenses without hope 
of success, the judicial process is 
nonetheless imposed upon and the plain- 
tiffs are callously put to unreasonable 
and unnecessary expense. 53 F.R.D., at 
39. Ibid. 

The second ground of the district court's award, the Court 

summarized, was that the plaintiffs acted as "private attorneys 

general": 

In 1970-71, cases of this kind were 
characterized by complex issues pressed 
on behalf of large classes and thus in- 
volved substantial expenditures of lawyers’ 
time with little likelihood of compensation 

-10~- 



or award of monetary damages. If forced to 
bear the burden of attorneys' fees, few 
aggrieved persons would be in a position 
to secure their and the public's interests 
in a nondiscriminatory public school system. 
Reasoning from this Court's per curiam 
decision, in Newman v. Piggie Park Enter- 
prises, Inc., 390 U.S. 400, 402 (1968), the 
District Judge held that plaintiffs in 
actions of this kind were acting as private 
attorneys general in leading school boards 
into compliance with the law, thereby ef- 
fectuating the constitutional guarantee of 
nondiscrimination and rendering appropriate 
the award of counsel fees. 53 F.R.D., at 
41-42. Id. at p. 708. 

The Court of Appeals for the Fourth Circuit reversed 

the district court's award, and the Supreme Court granted 

.gertiorari on plaintiff's petition. The issue, in Bradley 

as the Court stated it was: 

« « «'whether § 718 authorizes an award 
of attorneys' fees insofar as those expenses 
were incurred prior to the date that that 
Section came into effect! . i 4. 

* * * 

The question, properly viewed, then, is not 
simply one relating to the propriety of retro- 
active application of § 718 to services rendered 
prior to its enactment but rather, one relating 
to the applicability of that section tc a 
situation where the propriety of a fee award 
‘was pending resolution on appeal when the statute . 
became law. Id. at p. 710 [Emphasis supplied] 

In deciding this question affirmatively the Court stated that: 

In this litigation the plaintiffs may be 
recognized as having rendered substantial 
service both to the Board itself, by bringing 
it into compliance with its constitutional 
mandate, and to the community at large by 
securing for it the benefits assumed to 

flow from a nondiscriminatory education 
system. [note and citation omitted]. 
fd. at p. 7318. 

The. Court held that school desegregation actions were private 

in form only, with plaintiff's counsel acting as a "private 

attorney general" vindicating a national policy of the 

-11- 



highest priority. Id. at 719. 

With respect to the soetiie application of § 718 to 

the case before it, the Court held that the section applied 

and allowed the district court to award attorney's fees. 

Id. at 724. 

In arriving at that decision the Court treated two 

matters of statutory interpretation which are also relevant 

in this case. The first matter was whether a "final order" 

for purposes of § 718 existed. The Court said: 

Since most school cases can be expected 
to involve relief of an injunctive nature 
that must prove its efficacy only over 
time and often with frequent modifications, 
many final orders may issue in the course 
of the litigation. To delay a fee award 
until the entire litigation is concluded 
would work substantial hardship on plain- 
tiffs and their counsel, and discourage 

the institution of actions despite the 
"clear congressional intent to the contrary 
evidenced by the passage of § 718. A 
district court must have discretion to award 
fees and costs incident to the final dispo- 

sition of interim matters. Id. at pp. 722-23. 

noting that: 

Without wishing affirmatively to construe 
the statute in detail in the absence of 
consideration of the issue by the lower 
courts, we venture to say only that the 

- entry of any order that determines sub- 
stantial rights of the parties may be 
an appropriate occasion upon which to 
‘consider the propriety of an award of 
counsel fees in school desegregation 
cases. Id. alt p. 723, note 28. 

The second matter was the time at which the plaintiffs 

in that case became the "prevailing party" under § 718. The 

Court held that the plaintiffs had not yet "prevailed" in 

‘January of 1971, and 4id not prevail until) April 5, 1971, 

the date on which the district court ordered the Board's 

third plan into effect, 416 U.S. at 724. It is worth noting 

that as in Keyes, appeals on orders in the Richmond school 

2 

Lat 



desegregation case continued for several years after 1971. 

Section 718 also requires a finding that "the pro- 

ceedings were necessary: to bring about compliance . . ." 

The defendants’ past and continuing steadfast recalcitrance 

to these proceedings testifies more than adequately to the 

fact that this action was essential to achieve a nondis- 

criminatory public school system "in Denver in compliance 

with the mandate of the Fourteenth Amendment of the Consti- 

tution of the United States. 

Section 718 and the Bradley case dispose of the case 

here. The propriety of a fee award was pending resolution 

on July 1, 1972 when § 718 became law; as was the case with 

the Bradley district court's order of April 5, 1971, this 

Court's Final Judgment and Decree of April 17, 1974 is a 

"final order" within § 718. It is appealable. It determines 

substantial rights of the parties. The plan it put into 

-. effect is not interim but final. As the Court determined in 

pragiel plaintiffs became the "prevailing party" on the 

date on which a noninterim plan was first put into effect, 

e.g. April 17, 1974. 

III. Factors To Be Considered In Determining 
Reasonable Attorneys Fees 

The United States Court of Appeals for the Tenth Circuit 

has emphasized the following factors in approving the award 

of attorney's fees: (a) the acs that the award of attorney's 

fees is within the trial court's discretion, (b) the fact 

“that the trial court's award of fees will not be disturbed 

except upon a strong showing, especially in those cases 

where the trial judge who has made the award is the same 

judge who handled the litigation proceedings and is intimately 

familiar with the services rendered, (c) the risk and burden 

-]13- 



inherent in undertaking legal representation where fees will 

be recovered only if a plaintiff is successful, (d) the 

benefit conferred by the litigation, and (e) that the amount 

of the fee awarded should depend upon the particular facts 

of ‘each case. ‘Simler v. Conner, 352 F.24 138, 14) (10th 

Cir.) , cert. denied, 38 U.5. 928 (1965), Union Carbide §& 

Carbon Corp. v. Nisley, 300 'P.24, 561, 587 {10th Cir. 13961), 

appeal dismissed, 371 U.S. 801 (1962), and Continental 

Baking Co. v. The Old Homestead Bread Co., 476 r.24 97 

{10th Cir. 1873). 

Recently Judge McMillan has considered and applied 

Section 718 in the awarding of $175,000 in plaintiffs 

attorneys fees in the Charlotte-Mecklenburg school desegregation 

case. Swann v. Charlotte-Mecklenburg Bd. of Educ., (No. 

}Jo974, U.8.D.C. W. .Div'n., February 24, 1975). We have 

appended a copy of that opinion to this memorandum. Judge 

McMillan cited the following factors in resol his deter- 

mination of a reasonable fee award: (1) The results obtained; 

(2) the difficulty and novelty of the case; (3) fees paid to 

opposing counsel; (4) time and labor involved; (5) loss of 

other business; (6) fees customarily charged for similar 

services; (7) fixed or contingent fee; (8) reputation, 

experience and ability of plaintiffs' counsel. 

The Supreme Court, in the Bradley case, supra, did not 

address itself directly to the question of what factors must 

"be: considered in determining attorney's fees in the school 

desegregation area. However, the Court, in both Northcross 

and Bradley equated attorney's fees to be awarded in school 

desegregation cases with those awarded under the Public 

- Accommodations section of the Civil Rights Act of 1964, 42 

U.S.C. § 2000(a-b). Bradley v. Richmond School Board, 416 

U.S. 696, 719(1974). 

lq 



In a recent case under Title VII of the Civil Rights 

Act of 1964 Judge Peckam, in a Memorandum Decision awarding 

attorney's fees, discussed at length the factors to be 

weighed and considered in determining reasonable attorney's 

fees in such civil rights cases. After emphasizing the 

Congressional intention to encourage such litigation, Judge 

- Peckam listed several additional considerations: (1) the 

extent to which the plaintiff prevails, (2) the time devoted 

to the case, (3) the experience, reputation and ability of 

the attorneys, (4) the novelty and difficulty of the legal 

athens involved, (5) the contingent nature of any recovery 

of attorney's fees, and (6) fee customarily charged by other 

attorneys in the vicinity for similar services. Perez, et 

al. v. Operating Engineers Local Union No. 
—— 

>. €t 4l., Memo~ 

randum Decision No. 71-898 RFP, (November 8, 1973). 

In other important areas of Congressional policy where 

the Congress has entrusted enfoncensnt primarily to private 

actions the courts have emphasized many of the same factors. 

In the anti-trust area in which plaintiffs' chief counsel 

" would have been working primarily but for this case, the 

most common standards are those affirmed by the United 

States Court of Appeals for the Second Circuit in Transworld 

Airlines v. Hughes, 449 P.24'51 (2nd Cir. 1971), rev'd. on 

other grounds, 409 U.S. 363 (1973), which set forth the 

following considerations: 

(1) Whether plaintiff's counsel had the benefit 
of a prior judgment or decree in a case 
brought by the government, 

(2) the standing of counsel at the bar--both 
counsel receiving the award and opposing 
counsel, ; 

(3) time and labor spent, 
(4) magnitude and complexity of the litigation, 

“a 



(5) responsibility undertaken, 
(6) the amount recovered, 

(7) the knowledge the court has of the confe- 
rences, arguments that were presented and of 
work shown by the record to have been done by 
attorneys for the plaintiff prior to trial, 

(8) what it would be reasonable for counsel to 
charge a victorious plaintiff. TWA v. 
Hughes, 312 P.Supp. 478, 480 (8.B.N.¥. 1970). 

Another factor which is frequently taken into account 

is the contingency of compensation on the successful outcome 

of the suit. B.g9., Philadelphia v. Chas. Pfizer & Co., 345 

F.Supp. 454 (S.D.N.Y. 1972). 

The Supreme Court in a case involving the enforcement 

of the Securities and Exchange Commission's proxy rules has 

clearly held that no pecuniary benefit need be demonstrated, 

Mills v. Electric Autolite Co., 396 U.S. 375, 392-93 (1970), 

where the Court also emphasized the importance of such suits 

in the enforcement of an Important national policy. In 

another important securities litigation, Por lunk v. Feldman, 

160 F.Supp. 310 (D. Conn. 1958), District Judge Anderson 

stated: | 

Great weight is given to the contingent 
nature of fees with its accompanying risk 
that stupendous labor and a substantial 
overhead and expense might go for naught 
‘e+ oo. Consideration is given to the pre- 
vailing hourly rates of pay for attorneys 
of different degrees of skill, experience 
and standing, both in Connecticut and New 
York during the years of the pendency of 
this case; the amount of recovery; the 

industry, perseverance and skill of individual 
attorneys and their experience and eminence 
in this field of law; the great benefit to 
the clients which otherwise would not have 
accrued to them; the intricacy and 

complexity of the issues; the outstanding 
determination, resourcefulness and skill 
of the opposition and the novelty of the 

concept of the application of the rules 
of law to the facts of the case, which has 
made it a landmark in its field. 

-16— 



In addition, the American Bar Association has suggested that 

the following criteria be used in fixing fees: 

DR 2-106 - Fees for legal services. 

(1) The time and labor required, the 
novelty and difficulty of the questions 
involved, and the skill requisite to 
perform the legal service properly. 

- (2) The likelihood, if apparent to the 
client, that the acceptance of the 
particular employment will preclude 
other employment by the lawyer. 

(3) The fee customarily charged in 
the locality for similar legal service. 

(4) The amount involved and the results 
obtained. 

(5) The time limitations imposed by the 
client or by the circumstances. 2 

(6) The nature and length of the 

professional relationship with the 
client. 

(7) The experience, reputation and 
ability of the lawyer or lawyers per- 
forming the services. 

(8) Whether the fee is fixed or con- 
‘tingent. 

In view of the legal standards suggested by the courts for 

civil rights and analogous cases discussed above, plaintiffs 

suggest that the relevant factors, to be discussed separately 

below, are as follows: 

Xl. Time devoted to representation. 

2. Experience, reputation and ability of attorneys. 

3. Customary charges for similar services. 

4. Compensation contingent upon success. 

Be Magnitude and complexity of factual legal issues. 

6. Benefit achieved for the Sinads 

7. The extent to which plaintiff prevails. 

8. Fees paid to opposing counsel. 

J Considerations unique to this case. 

17 



l. Time Devoted To Representation 

Total number of hours devoted to the case by plain- 

tiffs' counsel through April 17, 1974 is 8,643.4 hours 

ranking it with the largest and most complex antitrust and 

securities litigations handled by the courts. This time has 

been recorded accurately on a daily basis as the case proceeded 

and is shown in that daily detail in Exhibit B. As the 

Court may note from the detail sheets, plaintiffs' counsel 

have excluded time entries representing 56.8 hours where they 

deemed the benefit to be at all questionable to the class. 

The time detailed in Exhibit B also does not include hundreds 

of hours of time devoted by volunteer attorneys to research 

the various legal issues in the case for which no fee is 

sought but which has benefited the class and the Board. Nor 

does the time detailed in Exhibit B include the time of 

numerous volunteers who researched various factual issues in 

the case. 

Of the total hours devoted to the case, Mr. Greiner has 

devoted 5,195 hours. This has necessitated forgoing other 

employment in Mr. Greiner's field of practice and expertise, 

antitrust law and has imposed a huge burden of overhead and 

out-of-pocket expenses, detailed in Plaintiffs' Motion for 

Dhation of Costs, with recompense, if any, completely 

dependent upon this Court's discretion and success tn the 

case. As an examination of the detailed accounts of time will 

show, a substantial amount of the time devoted by plaintiffs 

has resulted from the obstinate noncompliance of the School 

Board, which has sent its attorneys into action on the 

slimmest and most insubstantial pretext on numerous occasions. 

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. 

2. Experience, Reputation and Ability of Attorneys 

Plaintiffs' chief counsel, Gordon G. Greiner, is a 

graduate of Northwestern University and Northwestern School 

of Law, where he was an associate editor of its Law Review 

and a member of the Order of the Coif. He is a partner in 

the Denver law firm of Holland & Hart, with more than 15 

years of experience $5 Lares and complex litigations, 

specializing in antitrust law. As with the other attorneys 

discussed in this section, plaintiffs defer to this Court's 

judgment with respect to the skill and ability shown by 

plaintiffs' counsel in this case. 

James M. Nabrit, III, staff counsel for the NAACP Legal 

Defense Fund, is a graduate of Bates College and Yale Uni- 

. versity Law School. He is a lawyer of national reputation 

and has argued school desegregation cases before the Supreme 

Court of the United States on numerous occasions. He has 

brought to this case an expertise in school desegregation 

cases which has greatly reduced the amount of time which 

otherwise would have been necessary. 

Craig S. Barnes is a graduate of Stanford University 

‘and Stanford University School of Law, as well as Tufts 

University School of International Law and Diplomacy. He 

was associated with the law firm of Holland & Hart for 

approximately three years, and is currently in private 

practice in Denver, Colorado. 

Norman D. Chachkin, staff attorney for the NAACP Legal 

Defense Fund is a graduate of The University of Pennsylvania and 

New York University School of Law. He has specialized in school 

desegregation cases, supervising more than 150 such cases 

for the Legal Defense Fund as staff attorney in charge of 

education litigation. 



Robert T. Connery is a graduate of Yale University and 

Harvard Law School. He is a partner of the law firm of 

Holland & Hart, with more than nine years of practice in 

corporate and securities law and litigation and environmental 

law and litigation. 

Resumes of the principal attorneys for plaintiffs are 

attached to Exhibit B, and reflect the number of hours spent 

on this case and the experience of each attorney in more 

detail. 

3. Customary Charges For Similar Services 

The rates charges by lawyers for legal services in 
ay 

Colorado and New York are relevant in this case. Plaintiffs’ 

counsel intend to offer proof at the hearing on this matter 

with respect to the customary charges for lawyers of the 

experience, eminence and ability of plaintiffs' counsel in 

this case. 

4. Compensation Contingent Upon Success . 

It is well established that compensation in addition to 

that normally charged for routine practice is appropriate 

where recovery of any attorney's fee or overhead expenses 

depends upon his success. This factor, often referred to as 

the contingency factor, has additional significance in the 

area of public interest litigation as detailed by the Supreme 

Court in the Bradley opinion and in the case of Newman v. 

Plggie Park Enterprises, iInc,., 3950 U.S. 400, 402 (1968). 

The purpose of a contingent award in such litigation is to 

encourage legal counsel to undertake the enforcement of 

rights established by Congress or the Constitution. There 

has been and is virtually no possibility of relief for 

discrimination in the Denver public schools without the 

efforts of private litigants. 

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In order to encourage private counsel to undertake such 

litigation as Congress intended, the fees provided must 

provide a meaningful incentive to undertake such work rather 

than ordinary routine legal work where payment is certain. 

As a review of Exhibit C to this Application will 

demonstrate, awards of one hundred and fifty dollars an hour 

to two hundred dollars an hour for litigation on a contingent 

basis 1s common, with higher fee awards in many cases. The 

higher hourly rate awarded by the courts in contingent 

cases, often a factor of two or more times the ordinary 

hourly rate, reflects the fact that an attorney involved in 

such work may expect to lose as many cases as he wins, cor in 

general to recover only 50% of the time he devotes to such 

work. 

Indicative of the fact that such contingency considera- 

tions are appropriate in civil rights litigation is the case 

of WACO v. Alioto, No. C-70-1335WTS (See Findings and 

Recommendations re Attorneys Fees attached in Exhibit CQ) 

where the court awarded $200,000 in attorney's fees for 841 

hours of work or approximately $240 per hour. 

5. Magnitude, Novelty and Complexity of Factual and 

Legal Issues 

The Denver public school system, with over a hundred 

schools, is complex. The proof in this case has covered 

discriminatory practices over twenty years in teacher assign- 

ments, school boundaries, mobile units, transportation, 

administration and numerous other aspects of the school 

system. The legal issues involved have ranged from the most 

straightforward, common acts of school segregation such as 

teacher assignment policies, gerrymandering of boundari:: and 

location of new schools, to some of the most difficult and 

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complex, such as the legal effect of illegal segregatory 

actions in a substantial part of the school system upon the 

rest of the school system. The result has been a vandmark 

ruling from the En Court Of the United States. The 

Court is fully familiar with the factual and legal com- 

plexity of the case, with the novelty of the legal issues 

presented and with the magnitude of the effort required to 

make factual proof and legal argument in the cases. 

6. Benefit Achieved for the Class 

As quoted supra, p. 11 from the Court in the Bradley 

case, the benefit achieved is that of a nondigcriminatory 

system of public education in the City and County of Denver. 

Plaintiffs' counsel have served the Constitutionally and 

Conane sionally tend dat ross of leading the School Board 

“into compliance with the Fourteenth Amendment. The benefits 

to school children of a nondiscriminatory system of public 

education are incalculable, and fundamental to the equal 

. protection of the laws in our society. 

7. The Extent to Which Plaintiffs Prevailed 

This Court's Order of April 17, 1974 embodies the 

corpo relief sought by plaintiffs, namely the elimination, 

root and branch, of discrimination in the public school 

system. This subject has already been discussed above in 

connection with prevailing party status under the Bradley 

case, where the Court held shat pratneitis prevailed upon 

the issuance of a non-interim plan to desegregate the school 

system, even though it was not the plaintiffs' plan which 

was decreed by the court, and even though the matter was 

under appeal. 

8. Fees Paid to Opposing Counsel 

In opposing the efforts of plaintiffs and their classes 

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for the enforcement of their rights under the Fourteenth 

) Amendment, the defendants herein have paid $302,315,58 in 

attorneys' fees to their counsel from the inception of the 

litigation through the entry of this Court's Final Judgment 

and Decree of April 17, 1974. 

According to information furnished by defendant's 

counsel, the breakdown of these fees is as follows: 

No. of Fees 
Attorney Hours Paid 

William K. Ris 1,764 3/4 $77,510.40 

Robert Manley (Not known) | 11,599.18 

Kenneth M. Wormwood (Not known) 9,143.00 

Henry, Cockrell, Quinn 6,559.7 204,063.00 
& Creighton 

$302,315.58 

These statistics do sk include any allocation of the 

substantial retainer paid to Henry, Cockrell, Quinn & 

Creighton or payments for other time billed and paid to that 

firm for advising the Denver Public Schools administration 

and the Board of Education on matters arising from or related 

to the case where other matters were also discussed, and 

are therefore decidedly conservative and understated. The 

foregoing fees were based upon the following hourly rates: 

William K. Ris: From January, 1970 through October, 

1973, $40 per hour; from November, 1973 through April, 1974, 

$50 per hour for office time and $75 per hour for court 

time. 

Robert Manley: Mr. Manley's hourly rate is not certain, 

but believed to be $50 per hour. 

Kenneth M. Wormwood: Mr. Wormwood's hourly rate is not 

known. 

“DB 



Henry, Cockrell, Quinn & Creighton: From June, 1969 

through August, 1973, tile firm charged a flat rate of $30 

per hour for all time of partners and associates devoted to 

the case; from September, 1973 through May, 1974, a flat 

rate of $40 per hour was charged. 

The Swann case, supra, recognizes that the fee paid to 

counsel opposing plaintiffs in school desegregation cases is 

one of the appropriate factors to be considered by this 

Court in determining a reasonable fee. As noted supra, 

opposing counsel were assured of payment for their services; 

no contingency was involved. 

The number of hours devoted to the case by both counsel 

for plaintiffs and defendants is remarkably similar. Ignoring 

. the efforts of defendant-intervenors such as CANS and 

Barnett, et al., and considering the number of hours devoted 

to the case for defendants by Mr. Manley and Mr. Wormwood to 

have been compensated at $50 per hour, the principal attorneys 

for defendants have expended a total of 8739.45 hours (1764.75 

by Mr. Ris and 6,559.7 by the firm of Henry, Cockrell, Quinn 

& Creighton and 415 hours by Messrs. Manley and Wormwood), 

compared to a total of 8643.4 hours for plaintiffs (1215 by Mr. 

Nabrit and his associates, 1182.5 hours by Mr. Barnes, and 

6,245.9 hours by partners and associates of Holland & Hart). 

Thus overall, plaintiffs' counsel have expended fewer hours 

in the successful prosecution of this complex case than have 

defendants’ counsel in their largely unsuccessful defense. 

No small part of this differential should be attributed 

to Messrs. Nabrit and Chachkin of the NAACP Legal Defense 

and Education Fund, whose expertise in and continuing, 

concurrent knowledge of the ongoing evolution of school 

desegregation law consistently saved plaintiffs' local 



counsel time and effort in researching and presenting legal 

authorities and practical approaches to solving the many 

complex procedural and legal issues spawned by the litigation. 

9. Considerations Unique to This Case 

The Court is entitled to consider the special problems 

which have been encountered in this case by plaintiffs’ 

unde) and the Court, and the special impacts which have 

been visited upon them. The defendants have exhibited 

continuing bad faith and noncompliance with the law, as 

discussed above under "Factual Basis of the Application." 

While perhaps politically understandable, the School Board's 

exploitation of and resistance to school desegregation has 

Vasbiy Lnondised the burden on plaintiffs' counsel and this 

Court. The actions of defendant School Board, in public and 

in private, to impede and complicate this Court's task (as 

with the payment of this Court's expert for planning school 

desegregation), have been numerous, have caused delay, and 

have required judicial and legal process which would Have 

been completely unnecessary if, rather than defaulting at 

every opportunity, the Board had, for example, come forward 

with a proper district-wide desegregation plan. Defendant 

School Board should be held responsible for such actions. 

The Court is also entitled to take into account the 

impact which representation of the plaintiffs in elie class 

in this case has had upon the reputation of the counsel in 

the case. The undertaking of the representation of an 

unpopular cause, rendered more unpopular by defendant School 

Board's actions, has had predictable effects upon the 

reputation in the community of the lawyers involved and 

their affiliates. There is perhaps no way meaningfully to 

compensate counsel for the personal abuse, threats, and 

ome 



attacks on their reputation which have been engendered by 

this controversy, but certainly such factors are entitled to 

consideration in determining what meaningful incentive is 

required to encourage counsel to undertake such cases. 

10. Plaintiffs' Request For An Award of Reasonable 

Attorneys' Fees 

The data submitted herewith shows the following: 

With regard to Holland & Hart, based upon the then 

current hourly rates of the lawyers devoting time to the 

case, the 6,245.9 hours represents a total of $254,344.40; 

based upon the hourly rates now being charged by those 

lawyers, the 6,245.9 hours represents a total of $355,754.30. 

Ordinarily Holland & Hart would charge a fee in excess 

of its ordinary regular rates for legal services in a case 

such as this, due to the following factors in particular: 

3, The contingency of recovery of a fee being dependent 

upon successful prosecution of the case; 

24 The complexity and magnitude of the case and the 

concomitant responsibility assumed by the lawyers; 

3. The fact that no remuneration has been received 

although the case is now going into its seventh 

year of activity; 

4. The degree to which the primary objective of the 

clients, in this case district-wide school dese- 

gregation, has been attained; 

5. The numerous occasions of and necessity for 

appellate proceedings during the course of the 

litigation, including the successful prosecution 

of the appeal in the United States Supreme Court, 

requiring the highest degree of skill from the 

lawyers involved. 

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$  @ 

6. The quantity of trial days in court required by . 

the case, the number of conferences with the 

Court, often on short notice and necessitated by 

the defendants' reluctance or failure to observe 

both the letter and spirit of the Court's orders, 

again requiring the highest degree of responsibility, 

skill and concentration by the lawyers involved. 

In view of the foregoing factors, the law firm of 

Holland & Hart respectfully submits that a fee in excess of 

$450,000 would be reasonable, and requests an award of 

$375,000 for the legal services of the partners and associates 

of the firm through April 17, 1974, or an average hourly 

rate of $60 for the 6,245.9 hours expended. 

With respect to Craig S. Barnes, who served as co- 

cousel for plaintiffs from the inception of the case through 

May 25, 1971, he has expended 1,182.5 hours in the prosecu- 

tion of the case. If the fees had been fully paid at the 

time incurred, based upon the regular hourly rate of $40 per 

~ hour then being charged by Mr. Barnes, this would.have totalled 

$47,300. Based upon the regular fee being charged at the 

present time of $50 per hour, this would be $59,125. 

As is the case with the other plaintiffs' attorneys, 

Mr, Barnes' services in this case were subject to several 

unusual factors including, as applicable in this case, com- 

plexity and difficulty of the litigation, the uncertainty 

of payment, degree of success, unusual time pressures, 

diversity and variation of expert factual and legal backgrounds 

coordinated and assembled to obtain the result, and adverse 

effect of the undertaking upon other paying matters in the of- 

fice which were displaced. The last of these factors, 

-2 7] 



o » 
Plus the uncertainty of payment, take on significance perhaps 

greater than other factors in a small, two-man office such as 

that maintained by Mr. Barnes during his participation. 

When the litigation commenced, no payment of fees by 

those represented as anticipated nor was there any promise 

of payment made to any lawyer. The Denver Equal Educational 

Opportunity Fund was sublsbgnentiy formed and made partial 

payment to Mr. Barnes of $28,600 for his services. 

In view of the circumstances of this case, Mr. Barnes 

believes that a reasonable fee award to him would be $59,125 

(a rate Of $50 per hour for the 1,182.5 hours devoted to the 

case), undimished by the payments of $28,600 he has received. 

This $28,600 will be returned to the Fund and be made 

. available to defray the expenses incurred by, and to pay the 

fees of, witnesses in the case where the Court has determined 

that inclusion of their fee is not appropriate either as 

taxable costs or expenses of litigation. 

With regard to the NAACP Legal Defense and sduoation 

Fund, and its attorneys, Messrs. Nabrit, Chachkin Harper and 

Ms. Martinez, they have participated in the trial court and/or 

appellate proceedings since the inception of the case; Mr. 

Chachkin was the principal author of the successful petition 

for certiorari; Mr. Habrit co-authored the plaintiffs' brief 

in the Supreme Court with Mr. Greiner and has served actively 

as co-counsel in the case since remand from the Court; he 

also argued the case to the Supreme Court along with Mr. 

Greiner. 

It is submitted that a reasonable fee for the services 

of the attorneys for the NAACP Legal Defense and Education 

Fund would be as follows: 

-2 8-~ 



Mr. Nabrit 829 hours at $75 per hour $62,175 

Mr. Chachkin 100 hours at $50 per. hour 5,000 

Mr. Harper 212 hours at $50 per hour 10,600 

Ms. Martinez 50 hours at $50 per hour 2,500 

Mr. Greenberg 24 hours at $75 per hour 1,800 

Total 1215 hours : £82,075 

The attorneys for plaintiffs therefore jointly request 

that the Court award a total of $502,575, representing 

8643.4 hours of legal services, to be apportioned between 

them in accordance with their respective contributions 

to the case, as set forth above, to be taxed as costs herein 

against the defendant School District No. 1, Denver, Colorado. 

Iv. Expenses Incident To Litigation 

The out-of-pocket expenses of plaintiffs' counsel in 

conducting litigation, and the expenses of expert witnesses 

necessary to assist counsel, are frequently allowed when 

attorney's fees are awarded (see several avaTds of accountants 

and other expert witness fees detailed in Exhibit C, as well 

as the award of expenses in the Bradley case, supra). The 

expense of expert witness fees in this action have been 

applied for as taxable costs. However, plaintiffs believe 

that expert witness expenses more appropriately are classified 

as expenses incidental to attorney's fees which may be 

awarded within the general equitable power of the court and 

hereby also apply for them as such. 

CONCLUSION 

In view of all of the above considerations, plaintiffs’ 

counsel respectfully submit that they are entitled to a just 

and reasonable attorneys' fee for their professional services 

" rendered in this case. 

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Respectfully submitted, 

' i re G Greiner 

We 
pi £1 a 

Robert T. Cha SF 

d A 

500 Equitable Building 
730 Seventeenth Street 

- Denver, Colorado 80202 
(303) 292-9200 

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