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INDEPENDENCE TUBE CORP. v. COPPERWELD CORP.

June 21, 1982

INDEPENDENCE TUBE CORPORATION, PLAINTIFF,
v.
COPPERWELD CORPORATION AND REGAL TUBE COMPANY, DEFENDANTS.



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

  REVISED MEMORANDUM OPINION

After a ten-week, bifurcated trial, a judgment for $7,497,027.00 was entered against the defendants on the plaintiff's antitrust claim, trebling the jury's verdict of $2,499,099.00.*fn1 On June 22, 1981, we denied the defendants' motion for judgment notwithstanding the verdict or for a new trial.

The plaintiff has filed a petition for attorneys' fees under section 4 of the Clayton Antitrust Act. 15 U.S.C. § 15. The total requested is $1,668,202.55. That amount includes $1,337,402.25 for 17,781.25 hours spent by the plaintiffs' attorneys, both partners and associates; $55,473.75 for 1,749.75 hours spent by law students; $243,564.05 for 8,074.50 hours spent by legal assistants; and $31,762.50 in fees of attorneys, students, and assistants for time spent preparing and litigating the petition for fees and the bill of costs. The plaintiff has also requested an upward adjustment of the award based on the nature of the litigation and the attorneys' skill as well as interest on the award. For the reasons hereinafter stated, the plaintiff is awarded attorneys' fees of $1,722,175.53 plus interest.*fn2

The plaintiff has also filed a bill of costs, requesting $151,892.23. After the defendants filed objections, in accordance with the procedures in this district, our deputy clerk awarded the plaintiff costs of $129,610.10, the total of the amounts requested for deposition transcripts; witness fees and travel expenses; the plaintiff's expert witness fees and expenses; photocopying, charts, and photographs; and docket fees. The clerk disallowed the costs of the transcripts of court proceedings, the defendants' expert witness fees and expenses, and computerized research costs. The parties filed cross motions for review of the clerk's assessment. We held a hearing on October 15, 1981, to discuss with the parties the deficiencies both in the plaintiff's supporting documentation and in the defendants' objections which made it impossible to evaluate which costs should be taxed and which disallowed. At that time, we ordered the plaintiff to submit supplemental material in support of its bill of costs. The plaintiff filed an amended request for $92,791.55, and the defendants then filed further objections. For the reasons hereinafter stated, the clerk's order of June 22, 1981, is vacated, and the plaintiff is awarded costs of $92,497.17, plus interest.

I. Attorneys' Fees

The accepted method for determining the amount of an award of attorneys' fees begins with the calculation of a so-called lodestar figure by multiplying the number of hours reasonably spent on the litigation by a reasonable hourly rate. That figure is then adjusted up or down depending on the quality of representation and, if a contingency representation, on the risk that the lawsuit might have been unsuccessful and no fee obtained. That method is the simplest and most precise way of considering the twelve generally accepted factors on which a fee award should be based: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment; the customary fee in the community for similar work; the fixed or contingent nature of the fee; time limitations imposed by the client or the circumstances; the amount involved and the result obtained; the experience, reputation, and ability of the attorneys; the desirability of the case; the nature and length of the professional relationship with the client; and awards in similar cases. See generally, Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc); In re Folding Carton Antitrust Litigation, 84 F.R.D. 245 (N.D.Ill. 1979); American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106.

A. The Time-Rate Analysis

1. Hourly rates

The rates requested for the partners who worked for the plaintiff on this case range from $85 for the lowest rate for partners in 1976 to $140.00 for the highest rate for partners in 1981. The rates for associates range from $50.00 for the lowest rate in 1976 to $80.00 for the highest rate in 1981.

2. Hours spent

(a)

The defendants contend that an unspecified amount of the time included in the plaintiff's petition cannot be awarded because it represents duplicative work by the plaintiff's attorneys, e.g., attendance by more than one attorney at depositions, motion and status calls, and court hearings. Duplication should not be paid for by the losing party but an item-by-item accounting in a case of any size is unreasonably burdensome. Other courts "have approved the arbitrary but essentially fair approach of simply deducting a small percentage of the total hours to eliminate duplication of services." Northcross v. Board of Education, 611 F.2d 624, 636-37 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). See also Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc). Cf. Prandini v. National Tea Co., 585 F.2d 47, 51 (3d Cir. 1978) (court held that, "[a]bsent evidence to support the district court's finding of duplication or overlap, we cannot sustain the 10% fee reduction imposed by the district court.")

From our observation of this case, we conclude that there was some unnecessary and, therefore, noncompensable duplication. On many occasions, two and even three counsel participated in proceedings which could have been handled by one. On the other hand, the magnitude of the case clearly required the services of a number of attorneys as evidenced by the teams of counsel employed by the defendants. In determining the award, we will reduce the total number of attorney hours requested by ten percent.

(b)

Although at one time the Seventh Circuit held that all time spent on a case is compensable even time spent on claims which the party seeking attorneys' fees lost, see Sherkow v. Wisconsin, 630 F.2d 498, 504-05 (7th Cir. 1980); see also Northcross v. Board of Education, 611 F.2d at 636, in its most recent opinions on this subject, the court of appeals has held that attorneys' fees can be awarded only for preparation and presentation of claims on which a party is successful. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir. 1981); Busche v. Burkee, 649 F.2d 509, 522 (7th Cir. 1981). See also Muscare v. Quinn, 614 F.2d 577 (7th Cir. 1980). Although these cases involved the Civil Rights Attorneys' Fees Act rather than the Clayton Act, there is no reason to interpret section 4 of the Clayton Act, which awards attorneys' fees to a plaintiff who establishes that he was "injured in his business or property," differently from section 1988 of the Civil Rights Act, which awards attorneys' fees to the "prevailing party." Compare Busche v. Burkee, 649 F.2d at 522 (section 1988) with Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1214 (3d Cir. 1978) (Clayton Act case in which fees were not awarded for hours spent on unsuccessful claims).

Moreover, although the Seventh Circuit has apparently never decided this issue, since it has held that time spent on unsuccessful claims should be distinguished from time spent on successful claims, it probably would also hold that fees should not be awarded for time spent on state law claims, even if those claims were successful, since there is no statutory authority for such an award. See Baughman v. Wilson Freight Forwarding Co., 583 F.2d at 1215-16.

  However, although
  no compensation should be paid for time spent
  litigating claims upon which the party seeking
  the fee did not ultimately prevail. . . . [i]t
  sometimes will be the case that a lawsuit will
  seek recovery under a variety of legal theories
  complaining of essentially the same injury. A
  district judge must take care not to reduce a fee
  award arbitrarily simply because a plaintiff did
  not prevail under one or more of these legal
  theories. No reduction in fee is appropriate
  where the "issue was all part and parcel of one
  matter," Lamphere v. Brown Univ., 610 F.2d 46, 47
  (1st Cir. 1979), but only when the claims asserted
  are "truly fractionable," id.

Copeland v. Marshall, 641 F.2d at 891-92 and n. 18. Similarly, the calculation of time spent on successful claims "presumably includes time spent on unsuccessful claims to the extent such time would have been spent in connection with the successful claims even if the unsuccessful claims had not been brought." 649 F.2d at 522.

Furthermore, time spent on an issue on which a party failed to prevail but which was an aspect of a larger, successful claim, so that the failure affected only the amount of damages due for the claim on which he did succeed but did not affect the finding of liability, is compensable. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 165 (7th Cir. 1981). In Syvock, the plaintiff had succeeded in his claim that the defendant had discriminated against him on the basis of age but failed to prove that he had mitigated his damages or that the defendant had acted willfully. The court held that all time spent on the age discrimination claim was compensable including time spent on the issues of mitigation and willfulness.

(c)

In count III of the complaint in this case, the plaintiff alleged that defendant Yoder Co. had breached a contract with the plaintiff to provide a mill, equipment, and tooling which the plaintiff would have used to manufacture structural steel tubing. The jury found for the plaintiff on the breach of contract claim. In count IV of the complaint, the plaintiff alleged that defendants Copperweld and Regal had tortiously interfered with the contract between Yoder and the plaintiff. The jury found against these defendants and for the plaintiff on the tortious interference claim. In count I of the complaint, the plaintiff alleged that Yoder's breach of the contract was part of a conspiracy between Yoder, Copperweld and Regal to prevent the plaintiff from entering the structural steel tubing market in violation of section 1 of the Sherman Act. The jury found against Copperweld and Regal on that issue but found that Yoder was not a part of the conspiracy. In support of its section 1 claim, the plaintiff attempted at trial to introduce evidence of functional discounts granted by the defendants to Ryerson. We excluded that evidence. The plaintiff also attempted to show that Copperweld and Regal had conspired in violation of the antitrust laws to interfere with the plaintiff's relationship with Deere Plow and Planter Works. The jury found that there was no conspiracy to interfere with the plaintiff's business relationship with Deere but that Regal alone did interfere with that relationship. Count V of the complaint alleged that the defendants libelled and slandered the plaintiff. The jury found that Regal, but not Copperweld, was liable for commercial defamation. Count II of the complaint stated a claim for monopolization, a violation of section 2 of the Sherman Act. That count was voluntarily dismissed before trial.

The defendants brought a counterclaim against the plaintiff and its president David Grohne. The counterclaim alleged that the plaintiff had engaged in a systematic plan to induce Regal employees to leave Regal's employment for the plaintiff's in order to obtain trade secrets and confidential information from Regal and to interfere with Regal's operations. At the conclusion of the trial, we directed a verdict on the counterclaim in favor of the plaintiff.

In their objections to the plaintiff's petition for attorneys' fees, the defendants argue that the plaintiff cannot receive attorneys' fees for time spent on state law claims — the plaintiff's defense of the counterclaim, the breach of contract claim, the claims involving Deere, and the tortious interference claim — and that the plaintiff cannot receive attorneys' fees for time spent on the unsuccessful antitrust claims — the claims of conspiracy relating to Deere and Ryerson, the monopolization claim, and the claim of a conspiracy with Yoder. We agree that time spent on those claims is not compensable unless the claims are not "truly fractionable" from the successful antitrust claim. Lamphere v. Brown University, 610 F.2d 46, at 47 (1st Cir. 1979).

(d)

Under the applicable legal standards, we conclude that the plaintiff is entitled to attorneys' fees for services performed in relation to the counterclaim, the contract claim, the tortious interference claim, the Yoder conspiracy claim, and the monopolization claim because time spent on those claims would have been spent in connection with the successful section 1 claim even if the other claims had not been brought. The defendants' counterclaim against Grohne and the plaintiff was identical to their defense against the plaintiff's section 1 claim: the defendants argued that Grohne's alleged use of trade secrets and inducement of employees both made him liable to the defendants under state law and justified their activities which the plaintiff was claiming violated section 1, thus relieving them from liability under the antitrust laws. Even if the plaintiff had not had to defend the counterclaim, the plaintiff's attorneys would have had to perform the same services to counter the defendants' defense to the section 1 claim. Therefore, time spent on the counterclaim is also compensable.

The defendants argue that the breach of contract claim is separate from the antitrust claim because Copperweld and Regal did not defend the antitrust claim on the theory that there was no contract between Yoder and Independence. This is not totally accurate since they did contend that certain conditions precedent to a contract had not been met. In any event, much of the dispute in the breach of contract suit involved the reason Yoder did not deliver the mill, whether it was a result of pressure by Copperweld and Regal or whether it was due to other factors which had no antitrust implications. Those issues are indistinguishable from the issues in the antitrust claim. Although the plaintiff may not have had to prove the existence of a contract if the breach of contract claim had not been brought, since most of the time spent on the contract claim was directly relevant to the antitrust claim, and since the parsing of compensable from noncompensable time would be an impossible task, fees for most of the time spent on the contract claim will be awarded. The only exceptions are the 60.5 hours spent on the jury instructions relating to the breach of contract claim and the 71.75 hours spent on the Yoder settlement since those relate solely to the contract claim against Yoder.

Similarly, time spent attempting to prove that Yoder was part of the conspiracy will not be excluded from the fee award. All the issues which are a part of that claim — e.g., the contacts between the various defendants, the timing of and the relationship between the various events leading to Yoder's breach of the contract — were as much a part of the antitrust case against Copperweld and Regal as they were part of the case against Yoder.

Although the defendants argue that "significant efforts involved in research, briefing, discovery and trial time" related solely to the tortious interference with the Yoder contract claim, they have not identified how many hours they contend were spent solely on that claim nor given any examples of activity which would not have been performed by the plaintiff's attorneys if only the antitrust claim and not the state law claim had been brought. To prove its anti-trust claim, the plaintiff proved, among other things, a tortious interference with the Yoder contract and then proved a conspiracy. The tortious interference claim, therefore, is "part and parcel" of the antitrust claim, and time spent thereon will be included in the fee award.

Time spent on the plaintiff's withdrawn monopolization claim is also compensable. One of the defendants' defenses to the section 1 claim was that, since they did not have a near-dominant share of the market, even if they had used unfair means to keep the plaintiff out of the market, they did not create the risk of a monopoly and, therefore, there was no unreasonable restraint of trade. Although we rejected that theory at trial, until that time, the plaintiff could not be certain that we would exclude the defendants' evidence of market share and had to be ready to counter that defense by proving that the defendants had a large market share. Since that could only be established by doing the same discovery and preparation that would be done to prove a monopolization claim, time spent on the withdrawn monopoly claim is compensable.

The defendants argue that time spent on what they characterize as "market issues for 1975 and 1976" should not be awarded. The plaintiff introduced evidence on the condition of the structural steel tubing market to show restraint of trade. The defendants retort several times that the evidence was rejected by the jury because the jury "specifically found" that the conspiracy ended by 1975. That statement is incorrect. None of the interrogatories answered by the jury contained any dates or asked the jury to find when the conspiracy ended, although the jury did find that certain acts after 1975 were undertaken by Regal alone. Even if the jury had made such a finding, however, the evidence of market structure in 1975 and 1976 was part of the plaintiff's proof of its claim of an antitrust violation in 1974. The restraint of trade and the damages suffered by the plaintiff did not necessarily end when the plaintiff entered the market in 1974 since the delay in its entry had repercussions well after the time it began operation. The size of the jury's verdict clearly implies that it found the effects of the defendants' illegal activity went beyond the nine months in which the plaintiff was excluded from the market.

Time spent on the Deere claim and the Ryerson issue, however, is not compensable. In Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir. 1981), the court distinguished between cases in which a party loses only an aspect of a claim so that all time spent on a claim is compensable, and cases in which a party contends that several different actions of the defendants violated the law and in which the party fails to prove that all of the actions were illegal so that only time spent on the successful portions of the case is included in the fee award. At 165. Although the plaintiff argues that its allegations relating to Deere and Ryerson were only aspects of its claim that the defendants violated section 1 by conspiring to keep the plaintiff out of the market, the case does not arise, as the plaintiff argues, from one set of facts, and the claims relating to Deere and Ryerson are not simply different theories of recovery based on the same facts as the successful antitrust claim which related to the tortious interference with the Yoder contract. Although all were contained within count I of the complaint, the plaintiff's theory was that any one of the acts of the defendants violated the antitrust laws. Since the plaintiff failed to prove that the defendants' acts with respect to Ryerson were a restraint of trade or that defendant Regal's acts with respect to Deere were done in conspiracy with Copperweld, time spent on those aspects of the case cannot be included in the antitrust fee award. The plaintiff identifies 176.25 attorney hours and 105 legal assistant hours spent on those claims.

The defendants object to any fee award for time spent on the plaintiff's damages claim. Their argument that this work is not legal work, however, is frivolous. Although economic calculations are not legal work, the plaintiff's attorneys apparently left that to their experts and spent the time included in the fee petition gathering information to submit to the expert for analysis and preparing the experts' conclusions for presentation to the jury. Those tasks are clearly part of a lawyer's responsibility.

The defendants also argue that time spent on damages should not be awarded because the plaintiff sought total single damages of $8,298,240.00 but received single damages of only $2,499,009.00. That discrepancy might justify reducing the number of hours awarded but it could not justify eliminating that time from the award altogether; the time was productive in part in that the jury did award substantial damages. Furthermore, the time is compensable under the rule announced by the Seventh Circuit in Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149 (7th Cir. 1981), in that whatever part of the plaintiff's damages claim the jury rejected was an aspect of the larger, successful damages claim and the rejection only affected the amount of damages not the finding that the defendants were liable or that the plaintiff had suffered some damages. It is inevitable that a plaintiff will endeavor to prove the largest possible damages. The amount of time to which the defendants object (2038.75 hours) is not unreasonably large in light of the complexity of proving what damages were caused by the plaintiff's exclusion from the market and will be included in the fee award. Since that amount does include some unsuccessful effort, however, it will be excluded from the amount to which a multiplier is applied. See discussion, infra.

The defendants also object to time spent in depositions on noncompensable subjects. Since we have rejected most of their objections regarding which subjects are noncompensable, we will not subtract any additional time for depositions.

Finally, the defendants object to thousands of hours which they claim are not explained in a way which indicates sufficiently the nature of the task on which the time was spent. The defendants, however, do not identify which hours they object to on that ground. Without more specific objections, the plaintiff cannot supply more documentation, and we cannot determine the validity of the argument. We believe it reasonable to place the onus of an item-by-item examination of the plaintiff's time records on the defendants not the court, with the court perusing the records identified in the defendants' objections. In this case, since ...


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