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EIRHART v. LIBBEY-OWENS-FORD CO.

August 19, 1991

SHERRY EIRHART, Plaintiff,
v.
LIBBEY-OWENS-FORD COMPANY, Defendant; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LIBBEY-OWENS-FORD COMPANY, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This Court's May 22, 1991 memorandum opinion and order as supplemented June 7 (collectively "Opinion 1"), coupled with its June 12 "Opinion 2," found that plaintiffs were entitled to an award of attorneys' fees for part (though not all) of the matters covered in their November 7, 1990 petition for fees (the "Fee Petition"). Both plaintiffs and Libbey-Owens-Ford Company ("LOF") have submitted memoranda on the remaining questions relevant to quantifying the fee award.

 In a number of areas the parties have no quarrel: the basic hourly rates to be ascribed to plaintiffs' lawyers in calculating the "lodestar" figure and the reasonableness of the hours spent on Fee Petition categories A, G, H and K -- four of the five categories that this Court found compensable in Opinion 1. What remain open are these issues that are now ripe for decision:

 
1. what portion of the Petition F *fn1" hours are compensable;
 
2. what calculations are appropriate to adjust for delay in payment; and
 
3. whether a multiplier should be applied to the lodestar figure and, if so, how much.

 Compensable Hours

 Petition F covers plaintiffs' lawyers' services that are compensable in some areas as well as services in other areas that are not. One of plaintiffs' lawyers (Lynn Sara Frackman) has submitted an affidavit stating that just 10% of the 35 hours spent on Petition F matters (more than one-half of those total Petition F hours were put in by Ms. Frackman) actually related to the non-compensable matters. LOF counters by arguing that just two of the four subcategories in Petition F were compensable, so that LOF calls for a 50% reduction in the requested time.

 It would be overly simplistic to adopt LOF's suggested approach. As with Animal Farm, some of the issues subsumed within Petition F were far more equal than others. Certainly the most time-consuming of them had to be the sharp dispute -- presenting a serious and complex legal question that this Court was required to resolve -- over LOF's reporting of the payment of class counsel's attorneys' fees as income to the class members. Because both sides recognize that the two noncompensable issues were joint efforts of the parties (LOF Mem. 3, P. R. Mem. 3) and therefore necessarily involved much less time, clearly only a minor fraction of the Petition F time should be disallowed.

 It might perhaps be arguable that 10% is a bit too modest a discount, but this Court has no real way to go behind the records to make an assuredly accurate hindsight calculation. With just 35 hours having been spent on all of the Petition F matters, the numbers suggested by plaintiffs' counsel Frackman could arguably be off by only a few hours at most. This Court accepts the sworn estimate of Ms. Frackman -- the lawyer who did most of the work -- as a knowledgeable and credible characterization.

 Delay in Payment

 This Court has had many occasions to deal with the subject of attorneys' fee awards -- as a frequent lecturer or seminar participant, as well as in numerous oral rulings and written opinions. On the more focused question of how it is most appropriate to compensate for delay in payment, the availability of three of its written opinions ( Fleming v. County of Kane, 686 F. Supp. 1264, 1272-75 (N.D. Ill. 1988); Lippo v. Mobil Oil Corp., 692 F. Supp. 826, 838-42 (N.D. Ill. 1988); In re Telesphere International Securities Litigation, 753 F. Supp. 716 (N.D. Ill. 1990)) obviates the need for a great deal of discussion here.

 As those opinions make plain, the goal of the fee award should be to place the lawyer in the same economic position as if the matter had been billed and paid like any regular component of the lawyer's practice for a paying client, rather than having to wait for payment at the end of the litigation ( ...


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