UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
November 28, 1990
In re TELESPHERE INTERNATIONAL SECURITIES LITIGATION
Milton I. Shadur, United States District Judge.
The opinion of the court was delivered by: SHADUR
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
On October 23, 1990 this Court approved the settlement in this securities class action as fair, reasonable and adequate. But because it had not then been provided with all the necessary information as to the one issue on which the class was not independently represented -- the amount of attorneys' fees to be charged against the settlement fund, a question as to which class counsel and class members by definition have conflicting interests -- this Court requested and has now received additional input from class counsel bearing on that subject.
That added information is sufficient to permit the exercise of an informed judgment as to a reasonable fee award. In that respect this memorandum opinion and order will first look at the "lodestar" approach to that question, then (as counsel have suggested) will turn to the percentage-of-recovery approach in the process of evaluating whether or not that approach, or perhaps a multiplier times the so-called "lodestar," should apply to compensate for counsel's risk-taking.
Some factors that enter into the "lodestar" calculation as it has been tendered by counsel require a fresh (or more accurately an objective) look. They will be dealt with at the outset, after which an adjusted "lodestar" figure will be developed based on those factors.
As for the hours actually spent by counsel, the lawyers themselves recognize the existence of some wastage in that respect. First of all, this litigation began with a multiplicity of lawsuits -- the familiar (if not invariable) result when a public company, with stockholders located all around the country, suffers an event that sets the antennae of plaintiff class action securities lawyers vibrating.
That multiplicity alone meant that a substantial number of lawyers had engaged in much the same threshold activity, very likely of significant scope, in order to prepare and file their complaints. And of course that initial activity was necessarily duplicative and ultimately provided no more benefit to the class than a single law firm's efforts would have done.
At the next stage the various suits ended up grouped on this Court's calendar via transfer and consolidation. And even though this Court then insisted on dismissal of all the individual suits in favor of a single consolidated complaint, the problems of selecting lead counsel and thereafter of monitoring the efforts of the several law firm participants had to be dealt with by the lawyers -- once again with some inevitable duplication of effort even on the most favorable assumptions.
To put the matter most simply, there is just no question that the hours spent by ten law firms, as evidenced by plaintiffs' counsel's submissions, had to exceed by some substantial amount the time that lawyers in one law firm handling the ultimate single lawsuit would have had to spend in its preparation, filing and prosecution. And that is so no matter how efficiently the lead counsel and liaison counsel were in their efforts at coordination and in parceling out the work once the litigation team was organized.
Nevertheless this Court has not sought to carve any time out of the total hours to reflect that indisputable factor.
Instead the just-described point has been made in this opinion to recognize that any so-called lodestar figure that accepts the lawyers' hours at face value already contains a multiplier of some material but unquantified amount. After all, from the point of view of the clients -- the stockholder class -- no added value is contributed by a multiplicity of actions. In terms of the real value of legal services, the logical measure of a reasonable fee would be the amount that would have been earned by a single law firm handling the matter for the plaintiff class from the inception of the case.
2. Hourly Rates
As for the other component of the conventional lodestar calculation -- hourly rates -- more than one factor calls for discussion. They too will be addressed before this opinion applies the principles outlined here to the factual submissions.
First, as to the delay factor,
this Court has on several occasions explained why historical hourly rates with an adjustment for interest provide a substantially more precise level of compensation for the phenomenon of delay in payment than the simplistic (though convenient) application of today's hourly rates to all time spent by counsel during the course of the litigation (see, e.g., Brandt v. Schal Associates, Inc., 131 F.R.D. 512, 520-22 (N.D. Ill. 1990)), Lippo v. Mobil Oil Corp., 692 F. Supp. 826, 838-42 (N.D.Ill. 1988) and Fleming v. Kane County, 686 F. Supp. 1264, 1272-74 (N.D.Ill. 1988). In this instance the supplemental submission made by plaintiffs' counsel in response to this Court's request provides a number of confirmations of that proposition. Only a few of those confirmations bear brief mention, as drawn for example from the largest single request received from the participating law firms:
1. For one thing, fully 25% of the total fees of all the lawyers as requested in this case, when viewed in terms of the lodestar at current rates ($ 86,800 out of $ 348,890.50), represent the time of a single lawyer, Stephen Ramos, Esq. ("Ramos"), who moved from associate to partnership status in his firm on January 1, 1990. That type of advancement was specifically and accurately portrayed by Fleming, 686 F. Supp. at 1273 as a classic example of why current hourly rates across the board do not properly reflect compensation for the delay factor alone.
2. During the space of two and one-half years (the relevant time period in this litigation), the hourly rates of that firm's partners senior to Ramos have escalated from $ 350 to $ 450 (more than a 28% increase), $ 225 to $ 310 (about 38%), $ 275 to $ 345 (over 25%), $ 250 to $ 345 (38%) and $ 215 to $ 285 (nearly 33%).
It is unnecessary to prolong the analysis -- clearly the more than 16% difference between that firm's charges at historical rates ($ 92,397) and its proposed recovery at current rates ($ 107,458.50) is not just a reflection of delay in collection. It is equally not a fair surrogate for what should be determined to be a reasonable fee in the terms that this Court has analyzed at length in Fleming and Lippo and in briefer compass in Brandt.
Second, the hourly charges for many of the lawyers (some of them in the firm just referred to, and a number of them in other firms) are at levels much higher than are necessary to provide quality representation to the class. When clients choose their own lawyers, the free market operates -- whether or not the bargain is made on the basis of truly full information,
it reflects an agreement between a willing buyer and willing seller of legal services. But in the stockholders' class action it is the lawyers who choose themselves for all practical purposes
-- true enough, there is a one-to-one relationship between the lawyer and the individual class representative, but that relationship cannot equate to a bargained-for retainer by the entire class.
Hence the court must stand in the position of an intermediary acting for the class members in establishing rates. In this instance a large number of the lawyers seek to charge in the $ 300 to $ 400 hourly range, with several upwards of $ 400. But this is not a situation in which expert practitioners from other jurisdictions, where the prevalent market rates are higher than those in Chicago, must be brought in to fill a vacuum here. Chicago is scarcely a benighted backwater with little or no experience in dealing with sophisticated securities litigation. And the information derived from all three Chicago firms that had major involvements in this litigation is strikingly parallel:
1. Defense counsel representing Telesphere, a long-established and well-recognized firm of more than 100 lawyers, report that their current hourly rates range downward from a maximum of $ 245. That top figure is charged by a partner (tenth in seniority within the firm) who reports 20 years in the practice of law, and who is known to this Court as a skilled litigator.
2. Plaintiffs' liaison counsel firm (selected to perform that function by all the plaintiffs' lawyers in the case) charges $ 240 per hour for services rendered by the senior partner, who is also an experienced securities law class action litigator and who also has 20 years of practice under his belt. This Court has seen the quality of that lawyer's work in other litigation, and it is first-rate. And although this Court is not familiar with the caliber of performance by the other partner who rendered the bulk of the services by the firm, that partner's credentials are also impeccable and certainly appear to support the requested $ 180 hourly rate.
3. Another Chicago firm representing the class -- a small firm primarily engaged in stockholder class and derivative actions as well as in general business litigation -- reflects an hourly rate of $ 250 for its most senior people, (whose experience runs in the 10-15 year range). Again the credentials of those lawyers are impressive. Although their rates might be thought of as comparatively high if this Court were to attempt any degree of fine tuning (in order to create lateral justice among the many lawyers involved here), their rates are not so far out of line -- and they too confirm the sense of relevant numbers derived from the rates charged by the other two Chicago firms.
All in all, this Court is not prepared to approve more than a current rate of $ 250 per hour (thereby including the delay factor) for any of the members of the cast of characters representing the plaintiff class here. That conclusion is firmly undergirded by our Court of Appeals' discussion in Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir. 1982). As the Court of Appeals summarized its analysis ( id. at 769):
We think that a judge, in allowing an attorney's fee under Title VII or similar statute,
has discretion to question the reasonableness of an out of town attorney's billing rate if there is reason to believe that services of equal quality were readily available at a lower charge or rate in the area where the services were to be rendered.
In this case there is substantially more than such a "reason to believe" that supports this Court's "question[ing] the reasonableness of the rates at issue." Accordingly all requests for hourly rates higher than $ 250 will be cut back to that figure.
However, no effort will be made to scale back each of the requested rates that begin below that figure, in order to cause them to provide total comparability in terms of the lawyers' relative degrees of experience and other relevant factors.
Third and last in terms of the allowable rates for lodestar purposes, this Court is of course aware of the teaching of Missouri v. Jenkins by Agyei, 491 U.S. 274, 109 S. Ct. 2463, 2469-72, 105 L. Ed. 2d 229 (1989) that paralegal time is compensable at market rates in the 42 U.S.C. § 1988 context. It is also familiar with Judge Will's approval of paralegal rates as though they were a separate "profit center" ( Superior Beverage, 133 F.R.D. 119, at 131, 1990 U.S. Dist. LEXIS 14756, at 32-33). But this Court's just-expressed approval of the $ 250 hourly rate as the highest rate reasonable for the lawyers themselves has been given in contemplation of treating all operating expenses of the law firms except lawyers' salaries, drawings and partnership profits -- that is, every other expenditure that enters into running a law firm, including payments of compensation to paralegals among all the other nonlawyer personnel -- as overhead in determining a fair rate for the lawyers' time. With that premise having entered into this Court's determination of the ceiling rate for lawyers, it would amount to double billing if paralegals were also to be treated as the equivalent of lawyers in terms of profit centers, carrying their own full aliquot share of general overhead.
For that reason this Court requested input from counsel as to the real cost to them of the services of their paralegals (including fringe benefits as well as direct labor to the law firms), to provide a basis for evaluating a reasonable allowance for paralegal time. That request has been honored, and this Court has concluded that the appropriate measure is to apply an across-the-board $ 40 hourly rate to all paralegal time.
Application of the just-described principles leads to results that will be summarized in narrative form, and then repeated in Appendix A in tabular form. Here is the brief narrative summary:
Berger & Montague, P.C. -- All lawyers except Ramos and Holter (their time aggregating 43.5 hours) will be included at $ 250. Ramos' 347.2 hours are approved at $ 225 each. Holter's 23.6 hours are approved at $ 125 per hour. Those charges, together with 34.1 hours of paralegal time at $ 40 per hour, add up to $ 93,509.
Wolf Popper Ross Wolf & Jones -- Both Oestreich and Finkel (whose combined time aggregates 321 hours) are approved at $ 250 per hour. When that is added to 3.4 hours of paralegal time at $ 40 per hour, the total becomes $ 80,386.
Chertow & Miller -- As already stated, both hourly rates are approved as submitted, for a total charge of $ 21,502.
Kohn Savett Klein & Graf, P.C. -- Savett's 23.8 hours are approved at a $ 250 rate. Podell's 19.5 hours are approved at a $ 230 rate. Ryan's 28.5 hours are approved at a $ 160 rate. When those charges are added to 2.1 hours of paralegal time at the $ 40 rate, the total becomes $ 15,079.
Stull Stull & Brody -- Both Brody and Levine (aggregating 49.5 hours) are approved at a $ 250 rate, for a total of $ 12,375.
Silverman Harnes & Obstfeld -- Silverman's 138.75 hours are approved at the $ 250 rate, for total charges of $ 34,687.50.
Schiffrin & Craig, Ltd. -- This is the other Chicago firm, referred to earlier in the text, whose hourly rates have been found reasonable. Their total fees aggregate $ 22,291.25 and are approved in that amount.
Law Offices of Robert D. Allison -- Allison's 18.1 hours are approved at a $ 210 figure, for a total of $ 3,801.
Lawrence Walner & Associates, Ltd. -- Walner's 24.5 hours are approved at a $ 250 rate. When that is added to 4.8 hours of paralegal time at the $ 40 rate, the total becomes $ 6,317.
Harvey Greenfield, Esq. -- As already stated, Greenfield's 49 hours are approved at a $ 250 figure, which comes to $ 12,250.
In the aggregate, those amounts come to $ 302,197.75. And as indicated at the beginning of this section, Appendix A sets out the individual firm figures and the total in tabular form.
PERCENTAGE OF RECOVERY
There is something to be said for awarding fees as a percentage of recovery rather than in lodestar terms, and plaintiffs' counsel's Mem. 11-14 has said it well (see also Skelton, 860 F.2d at 255 n. 4).
In lieu of the amounts set out in their lodestar requests, plaintiffs' ten sets of lawyers ask for 25% of the $ 1,519,500 fund or $ 379,875, characterizing that as equivalent to a very modest multiplier (about 109%) of their claimed lodestar of $ 348,890.50 (the latter figure, as indicated earlier, representing the lodestar at current hourly rates).
In fact that comparison is misleading, for the properly calculated (or more accurately, the already overstated) lodestar outlined in the preceding section works out to a considerably lower ratio: almost exactly 20% of the class recovery (to be more precise, just under that figure). And that in turn would mean that the requested amount would come to more than a 125% multiplier.
This Court sees no justification for such a result here. Even if the approach to awarding fees in common-fund cases were to shift to a percentage of recovery rather than to an adjusted lodestar, it would seem clear that the percentages approved ought to be selected in a way that would reflect all the variables among cases -- variables such as the perception of likelihood of success at the outset of the action, when the risk is actually undertaken by the lawyers.
By definition that would call for differing percentages in different cases. There is certainly nothing sacred about a 25% figure. More importantly, it surely does not reflect a floor for the percentage-of-recovery calculation,
and this case is one in which a much more modest percentage such as 20% appears far more appropriate.
In summary, the percentage-of-recovery approach is not a precision instrument even if it were to be adopted -- cases that apply it on a post-hoc basis are all over the lot in setting the percentage, and the possibility of an up-front establishment of the percentage is no longer available in this case. And in view of the lower-than-usual perceived risk that existed at the outset of this litigation, and in view of the extent of lawyering that produced the ultimate result, plaintiffs' counsel would fare no better under that approach (and the plaintiff class would fare no worse) than via the adjusted lodestar.
That leaves for consideration only whether a multiplier should be applied to the previously calculated lodestar figure and, if so, how much. As already pointed out more than once, the lower lodestar figure that has been derived by this Court -- even though adjusted downward from counsel's requests -- still inherently contains some built-in multiplier of an unascertainable amount.
It might well be that the dollars should be left as they have been developed earlier in this opinion in light of that fact and in light of the additional fact that, as these cases go, this one had to be objectively perceived as comparatively low-risk at the outset.
But this Court has concluded that such a result might represent an insufficient reward for the good work done by the lawyers. What will be done instead is to apply the lawyers' requested 109% multiplier (though to be sure it was requested as to a quite different base figure) to the adjusted lodestar of $ 302,197.75, for a total award of $ 329,395.
This Court approves the payment to counsel of a total fee of $ 329,395, plus the verified out-of-pocket expenses of $ 34,436.97. Although fairness to all the lawyers concerned would strongly suggest that the fee award should be divided in the proportions represented by the adjusted amounts as set out in Appendix A, counsel are of course free to agree among themselves to a different distribution. This Court will await a motion from liaison counsel or lead counsel to indicate the manner in which the total funds should be disbursed to counsel and the class members.
Firm Name Amount
Berger & Montague, P.C. $ 93,509
Wolf Popper Ross Wolf & Jones 80,386
Chertow & Miller 21,502
Kohn Savett Klein & Graf, P.C. 15,079
Stull Stull & Brody 12,375
Silverman Harnes & Obstfeld 34,687.50
Schiffrin & Craig, Ltd. 22,291.25
Law Offices of Robert D. Allison 3,801
Lawrence Walner & Associates, Ltd. 6,317
Harvey Greenfield, Esq. 12,250