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LOCKLIN v. DAY-GLO COLOR CORP.

May 6, 1974

HARRY P. LOCKLIN AND ELMER J. BRANT, GENERAL PARTNERS DOING BUSINESS UNDER THE FIRM NAME OF RADIANT COLOR COMPANY, COUNTER-PLAINTIFFS,
v.
DAY-GLO COLOR CORP. (FORMERLY SWITZER BROTHERS, INC.), ET AL., COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Decker, District Judge.

MEMORANDUM OPINION

This matter comes before the court at the end of a long road, extending back to 1952, on counter-plaintiffs' Application for Assessment of Attorneys' Fees.*fn1 To put this petition in perspective, some background information on this litigation is essential.

I. History*fn2

Day-Glo Color Corporation*fn3 is engaged in the manufacture and sale of daylight flourescent materials. In October, 1948, after 15 years of preparatory work, Day-Glo began its United States licensing program. Since January, 1949, Harry P. Locklin and Elmer J. Brant, general partners doing business as Radiant Color Company, have competed with Day-Glo in the sale of daylight fluorescent products.

In June, 1952, Day-Glo instituted an action for patent infringement in this court against 16 of Radiant's customers. Although Radiant originally was not named as a defendant, the Company eventually was allowed to intervene and to file an antitrust counterclaim alleging that Day-Glo had violated sections one and two of the Sherman Act, 15 U.S.C. § 1, 2, and section three of the Clayton Act, 15 U.S.C. § 14. See Switzer Bros., Inc. v. Locklin, 207 F.2d 483 (7th Cir. 1953), cert. denied, 347 U.S. 912, 74 S.Ct. 477, 98 L.Ed. 1069 (1954). Day-Glo's infringement action was subsequently dismissed for failure to join indispensable parties. Switzer Bros., Inc. v. Chicago Cardboard Co., 252 F.2d 407 (7th Cir. 1958). The case proceeded to trial upon Radiant's amended counterclaim against Day-Glo and a counterclaim Day-Glo had filed against Radiant, and culminated in a judgment against Day-Glo for violation of the antitrust laws and a dismissal of the latter's counterclaim for lack of evidence. Switzer Bros., Inc. v. Locklin, 297 F.2d 39 (7th Cir. 1961), cert. denied, 369 U.S. 851, 82 S.Ct. 934, 8 L.Ed.2d 9 (1962).

Judgment was entered pursuant to the court's findings and the matter was referred to a special master to ascertain and report on the damages suffered and costs expended by Radiant, plus attorneys' fees.

Extensive discovery and lengthy hearings*fn4 were had before the master, and, six years after the referral, he reported that Radiant had been injured in the amount of $356,792.91.*fn5 Pursuant to section 4 of the Clayton Act, 15 U.S.C. § 15, this figure was trebled and judgment was entered for $1,145,378.73, including $75,000 in attorneys' fees. Locklin v. Day-Glo Color Corp., CCH 1969 Tr. Cas. ¶ 72,705, at 86,524, (N.D.Ill. 1969), aff'd, 429 F.2d 873 (7th Cir. 1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971).

II. The Present Application

In this application, Radiant petitions for a further allowance of attorneys' fees for services rendered before the master on the accounting for damages, in this court on objections to the master's report, and before the Seventh Circuit on appeal and the Supreme Court on petition for a writ of certiorari. Several aspects of the present request are worthy of note before examining the merits of the petition.

First, the establishment of Day-Glo's antitrust liability and the protection of that judgment through the denial of certiorari in 1962, entailed 2,004.33 hours of endeavor on the part of Radiant's counsel, for which the $75,000 fee previously mentioned was awarded. By contrast, the instant application requests, inter alia, $315,888.50 for 3,827.43 hours spent proving up the damages. Second, since February 4, 1971, when the judgment was paid in full, Radiant's lawyers have spent an additional 171 hours preparing and presenting their statement for fees.*fn6 For these efforts alone, Radiant seeks an additional $18,707.50. Thus, the total claim before the court amounts to $338,446,*fn7 which, when added to the $75,000 fee previously granted, would produce an aggregate of $413,446 in attorneys' fees, against only $356,792 in actual damages.

Finally, the present application is actually the third fee compilation put together by Radiant. The original computation was made in a petition presented by Radiant in 1969, for its attorneys' work through the proceedings in this court on objections to the master's report. In those documents, Radiant's senior counsel enumerated 3,397.72 hours of lawyers' time and calculated the "total time value" at "accustomed billing rates" to be $127,327.05. Notably, the fee schedule contained therein listed hourly charges ranging from $40 in 1963-64 to $50 in 1967-69 for lead counsel and $25 in 1962-63 to $40 in 1967-69 for associates. A second tabulation, covering, in addition, the period through the denial of certiorari in 1971, and presented to Day-Glo for purposes of settlement of the fees question, contained 444 additional hours and a dollar figure of $148,831.15.*fn8 The hourly charges for 1970-71 were listed as $60 for senior counsel and $50 for associates. In the present request, however, the former billing rates have been totally abandoned and an entirely new schedule adopted. Under the current petition, the hourly charges have ballooned to a flat rate of $100 for senior counsel and $50 for associates.

III. A Reasonable Attorneys' Fee

A. General Standards for Awarding Attorneys' Fees

Section 4 of the Clayton Act specifically provides that any person injured by antitrust violations may recover "a reasonable attorney's fee". 15 U.S.C. § 15. Although courts have long assessed fees under this statute, the determination of an appropriate award in a specific case is frequently a "delicate, embarassing and disturbing" task. Milwaukee Towne Corp. v. Loew's, Inc., 190 F.2d 561, 569 (7th Cir. 1951). See Courtesy Chevrolet, Inc. v. Tennessee Walking Horse B. & E.A., 393 F.2d 75, 77 (9th Cir. 1968). Over-generosity, in particular, must be guarded against so as to maintain public respect for and confidence in the organized bar.*fn9 However, courts must discharge this obligation mindful that the "apparent purpose behind this part of section 4 [is] to award the successful plaintiff a reasonable attorney's fee so that his treble damage recovery [is] not . . . unduly diminished by the payment to ...


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