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BOARD OF ED. OF EVANSTON TP. v. ADMIRAL HEATING

September 30, 1981

THE BOARD OF EDUCATION OF EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT NO. 202, COOK COUNTY ILLINOIS, ET AL., PLAINTIFFS,
v.
ADMIRAL HEATING AND VENTILATION, INC., ET AL., DEFENDANTS. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 205, COOK COUNTY, ILLINOIS, ET AL., PLAINTIFFS, V. BORG, INC., ET AL., DEFENDANTS. THE STATE OF ILLINOIS, ET AL., PLAINTIFFS, V. BORG, INC., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiffs in these three consolidated*fn1 class actions charge 22 piping and construction companies and 36 individuals with bidrigging, price fixing and job allocation in the Chicago area from 1956 until 1977 in violation of the Sherman Act. Two sets of defendants (Phillips, Getschow Co., Lee E. Getschow and Roy Getschow, Jr. ["Getschow defendants"] and Economy Mechanical Industries, Inc. and Elmer R. Bruksch ["Economy"]) have filed objections to Magistrate Cooley's May 28, 1981 order (the "Amendment"), which amended Pretrial Order No. 2 (the "Order") to require all defendants to reimburse their designated lead counsel for attorney's fees and other expenses. Defendants Borg, Inc., Jeffrey Berg, Howard Salzman and F.E. Moran, Inc. (represented by the lead counsel) have independently moved to strike portions of the Getschow defendants' April 27, 1981 Memorandum Relating to Motion To Clarify (the "Memorandum") filed before Magistrate Cooley. Finally, in response to this Court's request the parties have commented particularly on the proposed retroactive aspect of the Amendment, and have furnished the Court with statements reflecting the approximate amount of fees involved. For the reasons stated in this memorandum opinion and order:

    (1) Getschow defendants' objection to the Amendment
  is denied, and the Amendment is clarified in certain
  respects.
    (2) Economy's objection to the Amendment is
  sustained.

(3) Lead counsel's motion to strike is granted.

  Objections to the May 28, 1981 Amendment

On May 16, 1980 Magistrate Cooley entered the Order dealing with various aspects of pretrial management of these actions. Paragraph V established lead counsel for plaintiffs and for defendants and a steering committee for defendants. Lead counsel were directed to engage in three types of coordinating activities and the steering committee in three others, including the briefing and argument of motions and the preparation of joint written interrogatories and requests for the production of documents.

On March 3, 1981 Magistrate Cooley amended Paragraph V to include a provision stating that "it would be unfair and inequitable for only the clients of the named defense counsel to bear the total expenses associated with properly executing . . . [their] functions." Accordingly he directed that "all defendants shall share equally those expenses" effective nunc pro tunc May 16, 1980, the date the initial Order was entered. Upon request for clarification Magistrate Cooley entered the Amendment May 28, 1981, superseding the March 3, 1981 amendment. It enumerated the expenses covered by the Order and the procedure by which a defendant could "opt out" of participation in certain efforts by lead counsel or the steering committee (see Appendix A).

Getschow defendants object to the portion of Amended Paragraph V requiring assessment of attorneys' fees and expenses against all defendants.*fn2 They urge that:

    (1) Problems of allocation of such expenses would
  outweigh any advantages obtained under such an
  arrangement.
    (2) Defendants will improperly be placed in
  adversarial positions relative to each other.
    (3) Such an arrangement frustrates a defendant's
  rights under Fed.R.Civ.P. ("Rule") 10(c).

Economy objects to Amended Paragraph V to the extent that it covers expenses incurred before the date of the Amendment.*fn3 Defendants favoring the arrangement*fn4 urge that:

    (1) It facilitates a just apportionment of expenses
  incurred by lead counsel in activities inevitably
  ...

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