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United States District Court, Northern District of Illinois, E.D

May 16, 1983


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


Following the trial of these bitterly-contested Age Discrimination in Employment ("ADEA") lawsuits, in which plaintiffs obtained a jury verdict of some $9 million — doubled to about $18 million because the jury found United Air Lines, Inc. ("United") had wilfully violated ADEA — individual plaintiffs' counsel have moved for an award of fees, costs and expenses and plaintiff-intervenor Equal Employment Opportunity Commission ("EEOC") has moved for an award of costs. For the reasons stated in this memorandum opinion and order fees, costs and expenses are awarded, but not in the full amount sought.

Attorneys' Fees

There is no dispute as to the $895,472.98 "lodestar" figure covering fees for individual plaintiffs' counsel, for United has contested neither the time they spent nor the various hourly rates they request.*fn1 That limits the area of controversy (so far as fees are concerned) to whether any premium should be applied to the time spent by plaintiffs' lead co-counsel, Raymond C. Fay, Esq. ("Fay") and Alan M. Serwer, Esq. ("Serwer"). At lodestar figures their time charges represent some $635,000, more than 70% of the total time charges.*fn2 Plaintiffs' counsel ask for a 2.5 multiplier for the Fay-Serwer time, while United says no multiplier at all is appropriate.

One preliminary issue should be gotten out of the way first. Despite their agreement referred to in the preceding paragraph as to the proper hourly rates to be used in arriving at the lodestar figure, United's counsel have effectively tried to back into disputing the principal rate: They argue that a multiplier is inappropriate because the agreed-upon $125 hourly rate for Fay and Serwer already represents a "multiplier" of the $75 per hour rate that was originally referred to in the 1978 fee agreement between the first few plaintiffs and their counsel.*fn3 Because the reasonable hourly rate — mutually agreed upon as $125 — is the "convenient starting point,"*fn4 and not the end of the line, in the analysis whether a multiplier is appropriate, this Court will pause briefly to deal with United's invalid argument.*fn5

Most courts (including our own Court of Appeals) considering fee awards in related contexts, usually under 42 U.S.C. § 1988, have consistently made plain that the proper test is not what a plaintiff's lawyer has charged in fact, but rather what the reasonable value of the lawyer's services is. That may arguably be a contradiction in free market terms, but it is one the courts have accepted. Losing civil rights defendants have not been successful in challenging awards to lawyers acting pro bono, or salaried lawyers, on the ground plaintiffs would not in fact have had to pay the amount of fees actually awarded. See, e.g., Gautreaux v. Chicago Housing Authority, 690 F.2d 601, 612-13 (7th Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3583 (U.S. Jan. 31, 1983) (No. 82-1289). Were the rule otherwise, the civil rights violator would stand to obtain a windfall from the fact the plaintiff had to resort to a Legal Assistance Foundation lawyer or an ACLU volunteer lawyer. In another variant of the same concept, our Court of Appeals has recently rejected both the "bright prospects" standard and the notion that a contingent fee contract should serve "as an automatic ceiling on the amount of a [Section 1983 case] award." Sanchez v. Schwartz, 688 F.2d 503, 505 (7th Cir. 1982), followed in Lenard v. Argento, 699 F.2d 874, 900 (7th Cir. 1983), petition for cert. filed, 51 U.S.L.W. 3775 (U.S. Apr. 14, 1983) (No. 82-1692).*fn6

No principled distinction seems reasonable between pro bono or salaried lawyers (or for that matter, lawyers for large firms) on the one hand and lawyers like Fay and Serwer on the other, simply because the latter have opted for their kind of practice in a smaller Chicago office rather than for pro bono work or for the large firm practice to which their high-quality credentials would have given them entree. Under the facts of life in the law practice, Fay and Serwer have performed the bulk of their work at their firm (Haley, Bader & Potts) in cases where their clients could not guarantee the higher hourly tariff their counterparts in larger firms, representing deep-pocket clients such as United, can command.

Because the issue has been confronted by our Court of Appeals only inferentially, and because the matter is one of such wide-ranging applicability, this Court will risk laboring the subject a bit. In sum the operative principles line up this way:

1. Our search is for "a reasonable attorney's fee."

    2. What is "reasonable" is not limited by what the
  individual lawyer involved has contracted to charge
  in the case in which fees are being awarded. Sanchez;

    3. What is "reasonable" is also not limited by what
  the individual lawyer charges in his or her practice
  generally. Gautreaux.

Accordingly one indicium of the "reasonable" fee may be the price the lawyer places on his or her services in this or other situations, but the cases have rejected that as the conclusive factor in ascertaining the market rate.

Consequently the agreed-upon $125 — realistic in terms of the current market — is indeed Chrapliwy's "starting point" for determining whether a premium is appropriate and, if so, how much. With all deference our Court of Appeals does not provide much assistance in that latter respect. Two things are plain from its opinions:

    1. It does not like multipliers. It seldom approves
  them and, when it does, it usually cuts back on what
  has been allowed by the District Court that lived
  with the litigation. See its opinion of a month ago,
  In re Congressional Districts Reapportionment Cases,
  704 F.2d 380 (7th Cir. 1983); and its earlier opinion
  in Kamberos v. GTE Automatic Electric, Inc.,
  603 F.2d 598, 603-04 (7th Cir. 1979), cert. denied,
  454 U.S. 1060, 102 S.Ct. 612, 70 L.Ed.2d 599 (1981).

    2. As in both Reapportionment Cases and Kamberos,
  its own numbers are announced without a hint of their
  source. If we laborers in the District Court
  vineyards are to deal with the subject in a reasoned
  way, we ought to have more than a recital of the ABA
  Code of Professional Responsibility factors as
  announced in Waters v. Wisconsin Steel Works,
  502 F.2d 1309, 1322 (7th Cir. 1974), cert. denied,
  425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976) (and
  regularly repeated since Waters), followed by a
  bottom-line conclusion that the District Court's
  multiplier is too high but another unexplained figure
  is not.*fn7

This Court will try to bring to bear on the current problem its own recent experience in the practice as the senior active partner (and the principal billing partner) in a Chicago firm, familiar with (1) the "going rate" for lawyers of the skill and seniority of Fay and Serwer and (2) what the market is commanding where hours times usual hourly rates do not provide adequate compensation under the circumstances.

Plaintiffs' Memorandum describes very eloquently the size and steepness of the mountain their counsel set out to scale in these lawsuits. This Court will not lengthen this opinion unduly by rephrasing their accurate statement of the matter; it finds the factual recital correct and persuasive, and it attaches that recital to this opinion as its own findings. Ex. 2. What plaintiffs' Memorandum perhaps does not stress sufficiently is that very early in the life of these actions Judge Flaum (to whom the cases were originally assigned) denied plaintiffs' motion for preliminary injunctive relief, holding they had no reasonable likelihood of success on the merits. Of course that was before plaintiffs' truly massive discovery efforts uncovered the kinds of evidence that were ultimately persuasive to the jury (and to this Court), but it underscores the uphill nature of the battle, the risks involved and — most significantly for current purposes — an important reason a meaningful premium is appropriate. This opinion turns, then, to the ABA Code factors approved in Waters and later cases.

1. Time and Labor Required, Novelty and Difficulty of Questions Involved and Skill Required

Simply to recite these criteria is to confirm their strong applicability here. These cases were extraordinarily difficult to prepare and try. Plaintiffs' counsel faced much larger teams of highly skilled lawyers (and, it may safely be wagered, far more highly compensated lawyers, at least as to the team leaders). These actions posed a host of novel problems with which the litigators and this Court (itself operating of course under the inverse multiplier applicable to the hourly rates of the federal judiciary) had to wrestle, right up through the jury instruction conference that had to plow considerable new ground.*fn8 Though this Court has not itself counted them, plaintiffs' Mem. 16 says more than 40 memorandum opinions and orders were issued during the course of the litigation, mostly in the discovery area.

It comes with ill grace for the loser, United, to denigrate these factors of difficulty and skill with the benefit of hindsight. These actions were hard-fought under hard conditions. They took seven weeks of trial time and thousands of exhibits. And when word came that the jury had reached its verdict after a day's deliberations, and counsel and their clients had assembled in the courtroom for the dramatic moment of the verdict's return, it is fair to say neither the litigants nor their counsel were confident of what that verdict would be. United will not now be heard to underrate the difficulties plaintiffs' counsel overcame with real skill.

2. Likelihood the Particular Employment Precludes Other Employment by the Lawyer

Haley, Bader & Potts, the firm in whose small Chicago office Fay and Serwer are principal partners, has been forced by this litigation to curtail substantially its plans for which the Chicago office was established. These actions proved a very active tiger whose thrashing tail was being held by Fay, Serwer and colleagues. As United points out, Fay and Serwer have become experienced specialists in airline ADEA litigation, but that experience was bought in the high-risk climate of these lawsuits as already discussed. Because the litigation proved so demanding, the ability of the Chicago office to take on other employment as planned was inhibited in a major way.

3. Fee Customarily Charged in the Locality for Similar Legal Services

There are no truly "similar legal services" for purposes of comparison, for the combination of experience required for these actions is not found elsewhere. Without question $125 is at the low end of the spectrum for such activity, and though this Court has not been furnished the information (because of the parties' agreement on the $125 figure), it seems likely lead counsel for United (himself a highly-skilled practitioner) has almost certainly been compensated at a substantially higher rate.

4. Amount Involved and Results Obtained

This speaks for itself. In addition to the very large $18 million award, this Court has ordered reinstatement for all individual plaintiffs who wanted it, and questions of further relief (such as pension benefits) are still in litigation.

5. Time Limitations Imposed by Clients and Circumstances

Every step of the way was battled vigorously, reflecting a classic example of what Judge Will of this District Court refers to as the "Stalingrad defense." Time was plaintiffs' enemy. They wanted to be restored to active service, and they had been terminated because of age. Their prospects of reinstatement would necessarily dim with greater age and prolonged inactivity. As a result of that and other factors, both sides were subjected to a crash program of discovery of truly enormous proportions to meet a firm trial date established by this Court.

6. Nature and Length of Professional Relationship with Clients

This was not a factor.

7. Experience, Reputation and Ability of the Lawyers

Both Fay and Serwer, though younger lawyers by this Court's standards, had impressive experience and reputations. They handled themselves with great ability against opposing forces of great ability (and whose experience and reputation were greater than those of Fay and Serwer). This Court will not repeat their credentials, for they are not in dispute and can again be adduced by Fay and Serwer if this award is appealed.

8. Whether the Fee Is Fixed or Contingent

Pilots and Second Officers are highly paid. Consequently plaintiffs' counsel were not subjected to total contingency employment. Nonetheless their clients were not prepared to undertake open-ended commitments, and the contractual fee agreements they entered into provided plaintiffs' counsel with a limited pool of funds of $2,000 per plaintiff.*fn9 Thus recovery of most of the fees and expenses was contingent on success.

Taking all the factors into account, this Court has determined a substantial premium is indeed appropriate. It uses the concept of a premium rather than a "multiplier" advisedly. One fact the courts never seem to discuss in these cases (perhaps most judges have not recently been in the billing business) is the obvious one that hourly rates cover overhead as well as compensation for services.*fn10 Though the margins vary widely from firm to firm, a fair rule of thumb is to consider that $1 of a lawyer's billing covers $.50 of overhead and $.50 of compensation and profit. Thus a simple multiplier, where there is after all no increased overhead to cover, generates pure profit and multiplies that profit out of all proportion to the apparent number the multiplier represents.*fn11

In any event, this Court finds a $75 per hour premium is both reasonable and appropriate, raising the hourly rate for Fay and Serwer to $200 (expressed in the misleading multiplier terminology, that would be 1.6 times the $125 base rate). That ultimate $200 rate is not at all out of line in today's market*fn12 and is surely moderate under all the circumstances already discussed. That means an addition to the $895,472.98 lodestar figure of $381,217.50 (5,082.9 hours times $75), for a total fee award of $1,276,690.48.

Individual Plaintiffs' Costs and Expenses

Counsel for individual plaintiffs have meticulously separated out the amounts allocable to these cases from amounts spent on all the airline ADEA cases in which they have been involved. United does not object to items 1, 2, 3, 4, 6 and 16 in plaintiffs' itemization, or to parts of items 5 and 13. It does however object to the other requested items as outside the conventional "costs" awarded in litigation.

This Court has dealt with the limited concept of taxable costs on a number of occasions, usually not in printed opinions (Ingersoll Milling Machine Co. v. Otis Elevator Co., 89 F.R.D. 433 (N.D.Ill. 1981) is an exception). Plaintiffs correctly point to case law (though none of the cases that have dealt with the question are in our Circuit) that teaches a wholly different notion applies in civil rights actions generally and ADEA cases in particular, where Congress has seen fit to provide for the shifting of cost.*fn13 Dowdell v. City of Apopka, 698 F.2d 1181, 1188-89 (11th Cir. 1983); and see also such cases as Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240, 1244-45 (9th Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3099 (U.S. Aug. 2, 1982) (No. 82-192); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Northcross v. Board of Education of Memphis, 611 F.2d 624, 639-40 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Wheeler v. Durham City Board of Education, 585 F.2d 618, 623-24 (4th Cir. 1978); Greene v. Whirlpool Corp., 538 F. Supp. 352, 357 (W.D.N.C. 1982); Vulcan Society of Westchester County, Inc. v. Fire Dep't of City of White Plains, 533 F. Supp. 1054, 1067 (S.D.N.Y. 1982); Combes v. Griffin Television, Inc., 421 F. Supp. 841, 847 (W.D.Okla. 1976).

Because the premium for fees arrived at by this Court earlier in this opinion did not allow for any increased overhead beyond the norm, and because the items claimed by plaintiffs are indeed outside the norm of mine-run overhead, this Court finds the thrust of the cited cases persuasive. Plaintiffs are therefore awarded the full $48,808.20 they have requested for taxable costs and other reasonably incurred out-of-pocket expenses.

EEOC's Costs

EEOC has filed a bill of costs for $81,287.71. United does not quarrel with the amount involved and does not dispute that the claimed costs were reasonably and necessarily incurred. Instead it disputes the entire idea EEOC, as a government agency intervening as plaintiff, is entitled to an award of costs at all.

EEOC's claim is not under ADEA's special statutory provision for costs but under 28 U.S.C. § 2412(a):

  Except as otherwise specifically provided by statute,
  a judgment for costs, as enumerated in section 1920
  of this title, but not including the fees and
  expenses of

  attorneys, may be awarded to the prevailing party in
  any civil action brought by or against the United
  States or any agency and any official of the United
  States acting in his or her official capacity in any
  court having jurisdiction of such action.

United's semantic argument that these actions were not "brought by" EEOC ignores the realities that, as EEOC's R.Mem. 2 says:

  At the time the Commission sought to intervene in the
  Higman case, there were three Plaintiffs. The case
  was like David and Goliath, three former employees
  suing the largest airline in the free world. The
  entry of the Commission in the case balanced the
  scales and enabled the parties aligned against the
  Age 60 Policy to do the massive discovery necessary
  to meet United's defenses.

EEOC has been the lead plaintiff on the subject of injunctive relief. In the most meaningful sense these actions were brought by EEOC just as much as by individual plaintiffs (indeed United argued during the later stages of the litigation that the individual plaintiffs' claims must be dismissed because EEOC's presence had effectively converted these actions into suits brought by the government, a not even specious argument rejected by this Court).*fn14

For current purposes these civil actions may be considered as though brought by an agency of the United States. EEOC's claimed costs are not duplicative of those allowed to the individual plaintiffs. It is awarded the full $81,287.71 encompassed by its request.


United is ordered to pay the sum of $1,325,498.68 to plaintiffs' counsel as attorneys' fees, costs and expenses, and the sum of $81,287.71 to EEOC as costs, on or before May 31, 1983.



SUITE 5000



                                                 (312) 558-5600
                                                TWX 910-221-5467               WASHINGTON, D.C. OFFICE
                                            TELECOPIER (312) 558-5683             2500 M STREET, N.W.
FREDERICK H. WINSTON (1853-1886)                                                WASHINGTON, D.C. 20037
  SILAS H. STRAWN (1891-1946)                                                       (202) 828-8400

January 19, 1983

       (312) 558-5601

Mr. Raymond C. Fay Haley, Bader & Potts 77 West Washington Street Suite 1616 Chicago, Illinois 60602

Dear Ray:

I acknowledge your letter and enclosures of January 18, 1983. As you know, I will probably be out of the office next week and I therefore thought it would be helpful to answer your letter promptly.

    First. I will recommend to the client that we
  stipulate to your hourly rates as set forth in the
  second paragraph of your letter of January 18.

    Second. We do not intend to examine the time that
  you have spent line-by-line but I have asked our
  staff to sample the time statements. In that

  your office will hear from Bob Hermes or Marguerite
  Strubing regarding that sample verification.

    Third. It is my intention, subject to that view, to
  recommend to the client that we stipulate to the
  hours expended so that we will not have to have a
  hearing on that data.

Since this may affect the Court's scheduling, I am taking the liberty of sending a copy of this letter to the Honorable Milton I. Shadur.

                                    Very truly yours,
                                   /s/ Edward L. Foote

ELF:mv cc: Honorable Milton I. Shadur



Plaintiffs will attempt to summarize the background, history, and effect of the nearly four years of this litigation as they may impact on the appropriateness of their request for fees.

Although the FAA's Age 60 Rule has been a matter of considerable controversy since its inception in 1960, little of consequence had been accomplished to overturn or modify the Rule until the past several years. And although the Rule never applied to flight engineers, airlines including United have applied an analogous age limitation to their flight engineers in conjunction with "normal retirement ages" in pension plans. Until April 6, 1978, United and many other airlines retired all cockpit crewmembers at age sixty, referring either to the terms of their pension plans, to the FAA's Age 60 Rule, or both.

When the ADEA was amended in April 1978, the pension plan exception was no longer available. As evidenced at trial, United shifted its reliance to the Age 60 Rule, together with what it viewed as the factual underpinnings of the Rule, to support a continuation of the mandatory retirement policy which had begun with its earliest pension plan in the 1940's.

Beginning in April 1978, and continuing over the next twelve months, a small nucleus of United's flight engineers and, separately, an equally small number of United Captains, joined together to contest what they regarded as a violation of their right to be free of age discrimination in their employment, and their right to continue working so long as they could meet United's standards and requirements other than age.

The flight engineer group, led by Gerry Monroe, Kenneth Kuecker, and John Kalde, retained Haley, Bader & Potts to institute litigation and to file a motion for preliminary injunction in an effort to keep them working during what was expected to be extensive litigation. The complaint was filed on January 31, 1979.

The Captain group, led by Lee Higman, John Campbell, and Sylvanus Devine, coordinated with groups of pilots on other airlines, including Northwest, Braniff, TWA, Eastern, and Western (later joined by pilots on American and Continental) in bringing ADEA actions against their respective employers so that they, too, could continue their employment without respect to age. Their complaint was filed on April 10, 1979.

Recognizing the gross disparity of resources between a few retired pilots and major trunk airlines like United, and viewing the ADEA violations, aircraft types, crew positions, duties, and airline operations as substantially identical, their initial efforts had two aims. First, the crewmembers decided to bring ADEA representative actions in the hope that additional similarly situated crewmembers would pool their knowledge and resources to permit a fair contest against both the respective employer airlines and a hostile union representing the economic interests of a junior membership. Second, they brought all the actions in the Northern District of Illinois and immediately moved to consolidate the cases for trial. Plaintiffs in all of these actions were represented by Haley, Bader & Potts.

Plaintiffs' efforts were only partially successful. Although the representative ("class") aspects of the action provided by statute were not foreclosed, the Court (Judge Grady) declined to consolidate the actions and most were ultimately transferred to the judicial districts in which the respective airlines' headquarters were based.*fn* Later, a motion before the Judicial Panel on Multidistrict Litigation to transfer and consolidate for discovery was denied. Thus, the economies of consolidation were not achieved, and the risks from an economic standpoint of sustaining the litigation were great indeed.

Thus began the arduous road culminating in the trial of these actions for seven weeks in August and September 1982. From the beginning, the cases were novel, protracted, and thoroughly litigated. The proceedings in the litigation included:

  1. Class action counterclaims for declaratory relief,
     including the joinder of employees not parties to
     the litigation as defendants to the counterclaims.

2. Motion for preliminary injunction.

  3. Extensive discovery under Federal Rules 33 and 34,
     most of which was contested, resulting in the
     production of hundreds of thousands of documents
     by United, including personnel and training files,
     accident reports, incident summaries, and
     documents concerning substantially all aspects of
     its flight operations. As United pointed out in
     its Memorandum in Support of Motion to Compel
     Compliance (Aug. 6, 1981), "plaintiffs have
     served . . . discovery demands requesting
     voluminous information and documentation about
     virtually every phase of United's Flight, Training
     and Personnel practices and policies." (Mem. at

  4. A vigorously contested dispute over United's
     assertedly privileged "49 documents," resulting in
     the Court reversing the Magistrate's determination
     and ordering disclosure of key internal United
     documents revealing a plan to lead the industry
     ("spearhead") in pursuing action to extend the Age
     60 Rule to the flight engineer position.
     Litigation over "Document 22" was particularly
     contested, with plaintiffs ultimately succeeding
     in obtaining production following the Court's
     reconsideration of its earlier denial of
     plaintiffs' motion.

  5. Plaintiffs' motion for a court-approved notice to
     a "class" of similarly situated employees was
     granted over vigorous opposition by United. The
     Court's opinion was later relied on by courts in
     other ADEA actions, including Johnson v. American
     Airlines, Inc., 531 F. Supp. 957 (N.D.Tex. 1982);
     and Allen v. Marshall Field & Co., 93 F.R.D. 438
     (N.D.Ill. 1982). A similar ADEA notice was
     subsequently approved in Woods v. New York Life
     Insurance Co., 686 F.2d 578 (7th Cir. 1982).

  6. Litigation over United's medical files and
     disclosure of the names of affected crewmembers
     was particularly intense, including United's
     attempted mandamus action to the Seventh Circuit
     Court of Appeals, as well as its false and
     incomplete responses to discovery, resulting in
     the imposition of sanctions by the Court on
     November 5, 1981. The outcome resulted in a
     seven-month undertaking by plaintiffs' counsel,
     beginning in January 1983, to review the medical
     file of every United flight crewmember who had
     received an exemption, had become incapacitated in
     flight, had three proficiency failures within a
     given period, had a "special issue" certificate,
     or had been medically grounded since 1938. This
     effort, though arduous, was essential to the
     presentation and cross-examination of witnesses on

      medical-aging issues in this litigation.

   7. Extensive efforts under Fed.R.Civ.P. 26(f),
      resulting in an Order dated March 4, 1981
      limiting the issues and requiring plaintiffs to
      complete all United management depositions on an
      abbreviated intensive schedule. As United
      commented, "[i]n the months of May, June and July
      [1981], most business days were occupied in the
      deposition by plaintiffs of United officials."
      (Memorandum in Support of Motion to Compel
      Compliance at 5).

   8. Plaintiffs' response to an extensive Motion for
      Summary Judgment which was supported by
      argumentative affidavits not in compliance with
      the Federal Rules.

   9. The official docket sheet in the Monroe case
      reflects 2000 entries as of January 19, 1983.
      Plaintiffs conducted 70-1/2 days of depositions,
      including twenty-eight depositions of United's
      management, three of its experts, and eleven of
      ALPA officials and third party witnesses. This
      includes the three-day deposition of ALPA's
      medical advisor, Dr. Masters, which prompted
      substantial disputes as to Dr. Masters' status as
      an ALPA employee, his ability to testify on
      matters relating to the National Academy of
      Sciences, and the scope of the proposed
      examination. United took depositions from 66

  10. Plaintiffs filed 116 memoranda of law in these
      cases. There were 65 substantive motions filed in
      Monroe alone (excluding routine motions for leave
      to file documents or extensions of time), and the
      Court issued 48 written opinions.

  11. United utilized twenty-one attorneys in the
      preparation and presentation of its case.[fn**]
      The Air Line Pilots Association used

  12. The 33 days of trial from August 16 through
      September 29, 1982 (including jury selection,
      instruction conferences, and verdict) was, as
      best can be determined by counsel, the longest
      jury trial with the greatest number of plaintiffs
      ever conducted under the ADEA. The trial
      transcript is 6,872 pages. Over 2,000 exhibits
      were identified and marked by the parties.
      (United marked 1090; plaintiffs marked 995). The
      Court admitted 345 exhibits in evidence (272 for
      plaintiffs; 73 for United).

  13. The jury verdict was the largest in the history
      of the ADEA (based on reported and unreported
      decisions available to counsel). The relief
      already granted and likely to be granted in the
      future alters a practice which has existed for
      over forty years, and provides extended
      employment opportunities to a work-force of five
      thousand or more flight deck crewmembers. The
      effect on the air carrier industry is
      incalculable, since this case was the keynote
      case in the nationwide, industrywide dispute over
      whether the ADEA requires air carriers to allow
      flight engineers to work beyond age sixty.


By sheer coincidence this Court's May 16 memorandum opinion and order (the "Opinion") dealing with the award of attorneys' fees and other expenses to plaintiffs' counsel was issued the same day the Supreme Court announced its definitive opinion on attorneys' fees under 42 U.S.C. § 1988 in Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).[fn1a] This supplement is intended to reflect the impact of Hensley on the Opinion.[fn2a]

Though Hensley was a five-to-four decision, there is a wide range of agreement between its majority and the dissenters. In any case the Court's majority opinion is wholly consistent with the principles expressed and applied in the Opinion, requiring discussion of only one possible minor exception.

By way of emphasis and exposition it is worth quoting the operative principles from Hensley, at ___, ___, ___, 103 S.Ct. at 1939, 1940, 1941:

  The most useful starting point for determining the
  amount of a reasonable fee is the number of hours
  reasonably expended on the litigation multiplied by a
  reasonable hourly rate.

  The product of reasonable hours times a reasonable
  rate does not end the inquiry. There remain other
  considerations that may lead the district court to
  adjust the fee upward or downward, including the
  important factor of the "results obtained."

  Where a plaintiff has obtained excellent results, his
  attorney should recover a fully compensatory fee.
  Normally this will encompass all hours reasonably
  expended on the litigation, and indeed in some cases
  of exceptional success an enhanced award may be
  justified. In these circumstances the fee award
  should not be reduced simply because the plaintiff
  failed to prevail on every contention raised in the

  We reemphasize that the district court has discretion
  in determining the amount of a fee award. This is
  appropriate in view of the district court's superior
  understanding of the litigation and the desirability
  of avoiding frequent appellate review of what
  essentially are factual matters. It remains
  important, however, for the district court to provide
  a concise but clear explanation of its reasons for
  the fee award. When an adjustment is requested on the
  basis of either the exceptional or limited nature of
  the relief obtained by the plaintiff, the district
  court should make clear that it has considered the
  relationship between the amount of the fee awarded
  and the results obtained.

All those statements appear to this Court to support the analysis and conclusions of the Opinion, and this Court accordingly reaffirms both its reasoning and the results reflected in the Opinion.

One possible question is raised by Hensley's discussion and analysis: the allowability of the 94.75 hours (representing $18,950 of total fees, based on the $200 hourly rate approved in the Opinion) spent in plaintiffs' losing effort to obtain a preliminary injunction at the outset of this litigation in January 1979. Hensley speaks (id. at ___, 103 S.Ct. at 1940) of "partial or limited success" as a basis for reducing compensable services. But it does so in two contexts:

    1. "distinctly different claims for relief that are
  based on different facts and legal theories" (id.),
  as to which it goes on to say (id.):

    In such a suit, even where the claims are brought
    against the same defendants — often an
    institution and its officers, as in this case
    — counsel's work on one claim will be
    unrelated to his work

    on another claim. Accordingly, work on an
    unsuccessful claim cannot be deemed to have been
    "expended in pursuit of the ultimate result
    achieved." Davis v. County of Los Angeles, 8 E.P.D.
    ¶ 9444, at 5049 (C.D.Cal. 1974). The
    congressional intent to limit awards to prevailing
    parties requires that these unrelated claims be
    treated as if they had been raised in separate
    lawsuits, and therefore no fee may be awarded for
    services on the unsuccessful claim.

    2. "claims [that] were interrelated, nonfrivolous,
  and raised in good faith," as to which "Again, the
  most critical factor is the degree of success
  obtained" (id.).

Neither of those conditions for reduction applies here. Plaintiffs' unsuccessful motion for preliminary injunctive relief was based on the identical "facts and legal theories" that underpinned their ultimate success on the merits. That appears to this Court to implicate the earlier-quoted Hensley language stating (id.):

  In these circumstances the fee award should not be
  reduced simply because the plaintiff failed to
  prevail on every contention raised in the lawsuit.

And as for the alternative, plaintiffs scarcely can be said to have obtained less than a total "degree of success," for their back pay award (doubled because of wilfulness) coupled with reinstatement has given them everything the preliminary injunction would have provided. No different result is compelled by the Supreme Court's earlier reference (id.) at ___, 103 S.Ct. at 1939 to one of the cases cited approvingly in the Senate Report preceding enactment of Section 1988, Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal. 1974), aff'd, 550 F.2d 464 (9th Cir. 1977), rev'd on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

In this Court's view Hensley thus confirms the results announced in the Opinion. Consequently the Opinion and its concluding order remain unmodified.

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