Correspondence from Menefee to Chasez (Magistrate); Lewis v. J.P. Stevens & Co. Judgment in a Civil Case on Award of Fees and Expenses; Orders

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

P.O. BOX 1051 

MOBILE, ALABAMA 36633 

JAMES U. BLACKSHER TELEPHONE 
LARRY T. MENEFEE June 13, 1986 (205) 433-2000 
GREGORY B. STEIN 

WANDA L. COCHRAN 

Hon. Alma Chasez 
United States Magistrate 
United States Courthouse 
for the Eastern District of louisiana 
Chambers C-151 
500 Camp Street 
New Orleans, Louisiana 70130 

Re; Major v, Treen; C.A. No. 82-1192 Section C 
  

Dear Magistrate Chasez: 

Please find enclosed a copy of the recent order entered in 
Lewis v. J. P. Stevens & Co., Inc., directing an immediate 
payment of the uncontested portion of the attorneys' fees 
and expenses in that litigation. I also enclose a copy of 
the fee opinion in that action entered April 17, 1986, for 
contextual purposes only. 

  

We again request that the Court direct an immediate payment 
of the uncontested or not fairly contested portion of these 
fees. Those arguments were contained previously in page 53 
of our proposed findings and at page 22 of our reply brief. 

Best regards. 

Very respectfully, 

BLACKSHER, MENEFEE & STEIN, P.A. 

LTM:pfm 

Encl. 

cc: Patricia Bowers, Esq. (w/encls.) 
All Co-counsel (w/encls.)  



AO 450 (Rev. 5/85) Judgment in a Civil Case ® 
  

  

Hnited States District Court Wz 9s 
- ISTRICT OF. SOUTH CAROLINA JOHN W. WILLIAMS, CLER|   

  

GREENWOOD DIVISION_ COLUMBIA SC, 
SALLIE PEARL LEWIS, ET AL., : 
INDIVIDUALLY AND ON BEHALF OF ALTERED AND AMENDED 
ALL OTHERS SIMILARLY SITUATED JUDGMENT IN A CIVIL CASE 

ON AWARD OF FEES AND EXPENSES 
Vy. 

J.P. STEVENS & CO., INC. 

CASE NUMBER: C.A. 72-341 

Jury Verdict. This action came before the Court for a trial by jury The issues have been tried and the jury has rendered 

its verdict. 
plaintiffs' motion for 

[X Decision by Court. This action came to ¥Eak hearing before the Court. TheXekScthHbhE FoR Bch &2 
IXXBXRXEZE XE EXEX an award of attorneys’ feos having Doon duly od 

and granted; 

IT IS ORDERED AND ADJUDGED 

that the attorneys for the plaintiffs, Richard T. Seymour and Lawyers 

Committee for Civil Rights Under Law, recover of the defendant, J.P. 

Stevens & Co., Inc., an attorneys fee in the following amount: 

Lodestar amount $180,663.30 
Opportunity cost adjustment $ 20,000.00 
Delay in payment adjustment $ 16.053.00 
Total fee $216,716.36 

  

Costs and expenses 3 23.974.73 
TOTAL FEE AND EXPENSES $238,681.09 

  

No later than ten days after the entry of this altered and amended 

judgment, the defendant shall pay the undisputed amount of $133,302.28 

to Washington counsel for plaintiffs. 

JUNE 2, 1986 JOHN VW. WILLIAMS 
  

  

Clerk 

Nancy Marchant 

{8y) Deputy Clerk  



® ENTERED 
UNITED STATES DISTRICT COURT b =2-8,,; 
DISTRICT OF SOUTH CAROLINA MHSSOFILL 0 

GREENWOOD DIVISION 
FILED 

SALLIE PEARL LEWIS et al., UH 9 1985 

  

individually and on behalf of JOHN W. WILLIAMS, CLERK 

all others similarly situated, COLUMBIA SC 

Plaintiffs, 

yy. C.A. No. 72-341 

STEVENS & CO., INC., 

Defendant. 

This matter comes before the Court on plaintiffs’ 

Rule 59(e) Motion to Alter or Amend the Judgment, to include a 

provision directing the defendant to pay $ 133,302.28 immediately 

to Washington counsel for plaintiffs, said amount being the 

portion of the fee award entered herein on April 21, 1986 which 

the defendant did not contest before this Court. Upon consider- 

ing the Motion and the response of the defendant, it appears that 

the Motion is well taken. It is therefore hereby 

ORDERED, that: 

1. The judgment entered herein on April 28, 1986 in 

the amount of $ 239,691.09, pursuant to the Order determining 

the fee award for Washington counsel for plaintiffs filed on  



april 17, 1986 and entered on April 21, 1986, is hereby altered 

to include the following provision: 

No later than ten days after the entry of this 

altered and amended judgment, the defendant shall 

pay the undisputed amount of $ 133,302.28 to 

Washington counsel for plaintiffs. 

This ene. 20h of Alay , 198s. 
  

  

) 

AY { Al AA A AAAS 
ROBERT F. CHAPMAN [| °~ 
United States Circuit Judge 
Specially Designated to Sit as a 
District Judge for the Purposes 
of This Case 

Ww 
John W.. Williams, Clerk 

By: traaricipaserd har Z 
Defuty Clerk  



® ® {TERED 
94-21-86 

FILED 
12311 1086 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 

GREENWOOD DIVISION 

we "me 

JOHN WL WILLEMS, 

AS IMA 

Sallie Pearl Lewis, et al., 
individually and on behalf of all 
others similarly situated, 

Plaintiffs, 

Civil Action 72-341 
ORDER 

Versus 

J. P, Stevens & Co., Inc., 

Defendant. 

Presently before the court is the petition of the Washington 

attorneys for the award of fees and expenses due them as counsel 

for the prevailing parties in this class action case alleging 

racial discrimination in employment practices by J. P. Stevens & 

Co., Inc. &t its Abbeville, South Carolina, plant. The action 

was filed in 1972 and alleged racial discrimination in hiring, 

initial job assignments, promotions, recruiting, and layoffs. 

The court conditionally certified a class of black applicants for 

employment and black employees at the defendant's Abbeville 

plant. After a long and contested period of discovery, the case 

was tried to the bench at various times during 1975, 1976 and 

1977. In che Findings of Fact and Conclusions of Law of the 

Court, it was determined that the defendant had discriminated 

against black applicants for employment between. April 1968 and 

November 1971, and the court then defined the class to be "only 

the black applicants for employment at the facility operated by  



the defendant in Abbeville, South Carolina." Shortly after the 

Findings of Fact and Conclusions of Law were filed, there was a 

change in counsel £o¢ the defendant, and negotiations among the 

attorneys resulted in a consent decree which provided a 

settlement fund of $250,000. This amount was apportioned among 

the various members of the class pursuant to a consent decree in 

November 1983. The defendant and plaintiffs' local South 

Carolina counsel reached an agreement as to attorneys fees, costs, 

and expenses shortly after the distribution of the settlement 

fund, and this agreement was approved by the court on April 9, 

1984. 

Plaintiffs' Washington attorneys and the new counsel for the 

defendants entered into negotiations concerning the fees, costs, 

and expenses of Washington counsel. These negotiations did not 

result in a final agreement, but were fruitful in producing a 

stipulation as to the number of hours spent on this case by 

various attorneys, law clerks and paralegals. The attorneys also 

agreed to the hourly rate for these individuals. The stipulation 

was without prejudice to the plaintiffs' right to seek an 

increase in this amount because of delay in the receipt of the 

compensation, . the risk of nonpayment, opportunity costs, and other 

factors that have persuaded courts to increase the so-called 

"lodestar" amount (the number of hours multiplied by the hourly 

rate). The stipulation was also without prejudice to the 

defendant's right to urge that there should be an across-the-  



board percentage reduction of this lodestar amount because of the 

claim that the plaintiffs achieved only a limited degree of 

success. in the Lteddstion, 

The number of hours spent by the attorneys, law clerks and 

paralegals multiplied by the agreed upon hourly rate of each 

totals $180,663.30. The stipulated costs and expenses to be 

reimbursed to the plaintiffs’ attorneys by the defendant totaled 

$22,974.73. 

The statement of contested issues contained in the 

stipulation are as follows: 

1. should the court make an across-the-board reduction in 

the time spent by Washington counsel? Defendant contends the fee 

award for all work performed prior to 1982 should be reduced by. 

fifty percent because of defendant's view that the plaintiffs 

achieved a limited degree of success. Plaintiffs contend that no 

such reduction is warranted. 

2. Should the fee award, which is to be based on historic 

rates, be adjusted upward because of the delay in the receipt of 

payment and inflation? Plaintiffs contend that such an 

adjustment of $160,000 should be made. Defendants contend that 

no such adjustment should be made. 

3. Should the fee award be adjusted upward to compensate 

plaintiffs' counsel for the risk in taking on a case for which 

they would not be paid if they did not prevail? Plaintiffs  



contend that an. upward adjustment of $125,000 should be made for 

this reason. The defendants contend that no such upward 

adjustment should be made. 

4. Should the amount of the fee award be increased to 

compensate the plaintiffs' counsel for the opportunity costs of 

providing representation in this case and/or the time limitations 

imposed by the client or by the circumstances through the trial 

of the case? Plaintiffs contend that the fee award to Washington 

counsel should be increased $35,000 for this reason. The 

defendant contends that no such upward adjustment should be made. 

There being no question as to the entitlement of attorney's 

fees and costs due plaintiffs' attorneys, guidance must be sought 

as to the factors to be considered in setting the final fee. In 

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 
  

1974), the court outlined twelve factors or guidelines to be 

considered in determining an appropriate fee: (1) the time and 

labor required; (2) the novelty and difficulty of the questions; 

(3) the skill requisite to perform the legal service properly; 

the preclusion of other employment by the attorneys due to 

acceptance of the case; (5) the customary fee; (6) whether 

fee was fixed or contingent; (7) time limitations imposed by 

client op the circumstances; (8) the amount involved and the 

results obtained; (9) the experience, reputation and ability of  



the attorneys; (10) the "undesirability" of the case; (ll) the 

nature and length of the professional relationship with the 

client; and (12). awards in similar cases. 

These guidelines have been adopted by our circuit in Barber 

  

v. Rimbrell's, Inc., 577 F.24 216 (4th Cir, 1978), cert. denied, 
  

439 U.S. 934 (1978). In Anderson v. Morris, 658 F.2d 246 (4th 
  

Cir. 1981), the court directed that the first step in 

establishing a proper fee was to establish the nature and extent 

of the services supplied by the attorney and determine the number 

of hours reasonably expended multiplied by the customary hourly 

rate of compensation to produce the initial amount of the fee 

award. Anderson directed that this time-rate calculation is not 

mechanical, but the court must determine what hours were 

reasonably required to perform the services and what was the 

proper hourly charge for the attorneys, law clerks and 

paralegals. The Anderson court stated: 

Moreover, in determining both time and 
rate, the judge must evaluate the quality as 
well as the quantity of the attorneys' work. 

Making such adjustments, as well as the 
other twelve Johnson factors, falls within 
the discretion of the trial judge. He 
should, however, begin with a figure based on 
the number of hours reasonably expended 
multiplied by the reasonable hourly rate and 
then explain any adjustment of these figures 
either up or down because of the other 
Johnson factors listed in Barber. 

685 F.24 at 249.  



The stipulation of the attorneys has greatly eased the 
A 

court's burden in establishing the lodestar figure, The Johnson 
[3 4 ~ 

Ye pty ; i 

guidelines l, 2, 3, 5, 9 and 12 are all subsumed in the 

stipulation of the number of hours worked and the hourly rate. 

The plaintiffs' chief counsel is a specialist in the field of 

employment discrimination litigation; as such, the case is not 

novel, nor do I find that it presented particularly difficult 

questions. The skill necessary to perform the legal services 

properly, the experience, reputation and ability of the attorney 

and the customary fee for similar services have all been 

considered and factored into the hourly rate set forth in the 

stipulation. 

Johnson factor (10), the undesirability of the case, is not. 

applicable because this is the type of litigation the plaintiffs’ 

attorney seeks and enjoys. The fee is not influenced by Johnson 

factor (11), the nature and length of professional relationship 

with the client. All of the plaintiffs, except Sallie Pearl 

Lewis, would be considered one-time clients. Sallie Pearl Lewis 

was also the plaintiff in an action brought by the same attorney 

against Bloomsburg Mills, see 773 F.2d 561 (4th Cir. 1985). 

DEGREE OF SUCCESS 
  

Defendant argues that the lodestar should be reduced because 

of the plaintiffs' limited success when comparing the claims of 

racial discrimination with the final conclusions at the trial. 

The plaintiffs' present attorney took over the litigation shortl E P y Y  



after the complaint had been prepared and served. It is obvious 

from reading. the complaint that its allegations adopt a shotgun 
We 3 : . 

approach, but ‘this te not unusual. The complaint alleged racial 

discrimination in hiring, initial job assignments, promotions, 

recruiting and layoffs. The finding of the court was 

discrimination in hiring for a three-year period. The issues of 

initial job assignment and promotion were litigated and consumed 

some time, but it is impossible for the court to determine what 

witnesses were presented solely on discrimination in hiring. 

Most of plaintiffs' witnesses testified as to various actions 

that could have been considered as discrimination in initial job 

assignment and promotion, as well as in the area of hiring. The 

plaintiffs' attorney did not litigate the allegations of racial 

discrimination in failing to recruit black employees or racial 

discrimination in layoffs. Early in the discovery stage he 

determined that there was no evidence to substantiate these 

claims, and they were abandoned before they consumed any 

appreciable amount of time. 

The defendant relies upon the recent decisions in Hensley v. 
  

Eckerhart, 461 U.S. 422 (1983) and Blum v. Stenson, 465 U.S. 887 
  

(1984), which determined that the extent of a plaintiff's success 

is a crucial factor in determining the proper amount of the 

attorney's fee, and when the plaintiff failed to prevail on  



a claim unrelated to the successful claims, the hours spent on 

the unsuccessful claim should be excluded in considering the 

amount of a reasonable fee. 

As pointed out above, it would be difficult, if not 

impossible, to filter out of the record the testimony that was 

applicable only to discriminatory hiring and not in some degree 

applicable to claims of discrimination in initial job assignment 

and promotion. Much of the testimony was required to give the 

court a full picture of the employment practices at the Abbeville 

plant. 

In answer to this argument, plaintiffs' attorney contends 

that he achieved the result he sought in bringing the lawsuit, 

which was to improve the job level of blacks working for the 

defendant at its Abbeville plant and to increase the number of 

the black employees. The record supports this claim. Employment 

of blacks increased significantly immediately after the lawsuit 

was commenced, and the percentage of blacks employed has 

continued to increase since that time. The Abbeville plant now 

nas about fifty percent black employees, which is double the 

percentage at the time the litigation began. Blacks are now 

represented throughout the plant and are not restricted to 

certain low-paying departments or classifications. Some blacks 

are now in supervisory positions. It is impossible to determine 

how much of this change resulted from the present lawsuit, but 

the court can reasonably conclude that the litigation had a very  



beneficial effect for the class represented by plaintiffs’ 

attorney and other :black employees. The court had the benefit of 

hearing the testimony and studying the various exhibits 

presented. These showed a steady increase in black employment. 

£ 5 conclude that no adjustment of the lodestar amount, either 

up or down, is required on the issue of the degree of success. 

the plaintiffs’ attorney prevailed and produced a significant 

result for his clients, but he did not succeed on all issues. 

His degree of success was not "exceptional" under Hensley, but 

since most of the evidence had to be presented to draw a complete 

picture for the court, there is no reason to reduce the fee 

because of the issues that failed. 

CONTINGENT FEE, OPPORTUNITY COSTS OR PRECLUSION FROM OTHER 
EMPLOYMENT.   
  

Plaintiffs' attorney argues that the lodestar amount should 

be increased because he took this case on a contingency, and that 

if he had not prevailed, he would not have been paid for his many 

months of work. In Blum v, Stenson, 465 U.S. 886 (1984) the 
  

court left open the question of whether the risk of not 

prevailing and therefore not being paid ever justified an upward 

adjustment of the lodestar amount. See 415 U.S. at 901 n.l7, 

find that the contingent nature of the fee in the ctesent case 

should be considered with the fourth element of Johnson, the 

preclusion of other employment or opgortunicy costs. Mr. Seymour 

came into the present case in October 1972. At that time he was 

the sole practitioner, and he continued to practice alone and  



devoted many weeks of time exclusively to this case until he 
- 

aba = 
joined Lawyers Committee for Civil Rights Under the Law on 

January 10,,1977. Because of the time spent on this case, he was 

not able to take individual claims of discrimination by federal 

employees that were available to him, and in such cases he could 

have charged a fee on a current basis. I find that his 

opportunity costs in pressing the instant litigation and giving 

up other opportunities for employment entitle him to an upward 

adjustment for the time he spent while practicing alone. This 

amount also includes any claim for the contingent nature of the 

fee and any claims for time limitations imposed by the 

circumstances of the case. I find that there were no time 

limitations imposed by the clients. I find that an upward 

adjustment of $20,000 is proper to cover these items. 

DELAY IN PAYMENT OF PPE: 
  

Although delay in payment of fees is common in the law and 

is to be expected by attorneys, the delay in this case has been 

unusually long and to a great extent was occasioned by the 

actions of the defendant and/or its attorneys. The case and the 

legal services of the attorney go back for more than fourteen 

years, and the dispute over the fee has been delayed for an 

additional time. I find that an upward adjustment of eight 

percent of the adjusted lodestar amount is justified under the 

circumstances.  



IT IS, THEREFORE, ORDERED that the defendant J. P. Stevens & 

Co., Inc., pay to Richard T. Seymour and Lawyers Committee for 

Civil Rights Under Law, the attorneys for the plaintiffs in this 

action, an attorneys' fee in the following amount. 

Lodestar amount 
Opportunity cost adjustment 
Delay in payment adjustment 
Total fee 

Costs and expenses 

TOTAL FEE AND EXPENSES 

AND IT IS SO ORDERED. 

$180,663.30 
$ 20,000.00 
$ 16,053.06 
  

$216,716.36 

§ 22,974,73 
  

$239,691.09 

(eu Clamp 
Robert . Chapman 
United States Circuit iis 
Specially Designated to Sit as 
a District Judge for the 
Purposes of this Case. 

-17~. A TRUE COPY 
Attest