Unpublished Dispositionnotice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.paul Houck, on Behalf of the United States of America,plaintiff-appellant, v. Folding Carton Administration Committee, et al.,defendants-appellees.in Re Folding Carton Antitrust Litigation.appeal of United States of America, 934 F.2d 323 (7th Cir. 1991)

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US Court of Appeals for the Seventh Circuit - 934 F.2d 323 (7th Cir. 1991)

May 28, 1991


Before WOOD, JR., CUDAHY and KANNE, Circuit Judges.


ORDER

In its decision In re Folding Carton Antitrust Litigation, 884 F.2d 494 (7th Cir. 1989), this court, among other things, remanded this cause to the district court for further proceedings in accordance with its mandate, reserving jurisdiction in this panel to see to the fulfillment of the mandate. On remand the case was reassigned to the Honorable Ann Claire Williams, United States District Judge.

Thereafter on March 5, 1991, the district court filed with this court its memorandum opinion and order supplemented on April 11, 1991. By order dated April 25, 1991 this court invited all parties in interest and all others who had participated in this litigation, if they so chose, to file briefs within fifteen days from the date of the order, addressing any new issues deemed to be raised by the above order of the district court.

Only Kevin M. Forde, Ltd., as appointed counsel for the Administration Committee in defense of the cause of Houck v. Folding Carton Administration Committee, et al., 88-1314, has responded. The opinion of Judge Williams reduced the fees to be awarded to Mr. Forde by twenty percent. Mr. Forde's own request for fees, separate from fees allowed to the Committee, totalled $142,758.75 with $5,213.12 for expenses.1  Counsel now seeks to have the reduction order modified and the fees approved and restored in full.

We believe it would be helpful if Judge Williams had the opportunity to consider the appellate arguments of Mr. Forde, his brief is attached for that purpose, and then for her to give this court the benefit of her review of the initial exercise of her discretion in light of Mr. Forde's appellate arguments. Judge Williams may file with this court a memorandum as soon as may be reasonably possible.

The determination of a fee award is left to the sound discretion of the district court. Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1108 (7th Cir. 1990). We will not disturb the finding of the district court in the absence of an evident abuse of discretion.

With the exception of this pending fee determination as challenged by Mr. Forde, upon which we as yet express no view, it is evident that Judge Williams has given this unique, troublesome and prolonged case careful and thoughtful consideration. Therefore in all respects, reserving only the pending question of Mr. Forde's attorney's fees, we find that the district court's order of March 5, 1991 as supplemented on April 11, 1991 fully, fairly and reasonably resolved all other issues that remained, and is therefore approved and affirmed.

AFFIRMED AND REMANDED IN PART.

ATTACHMENT

BRIEF OF KEVIN M. FORDE, LTD.

JURISDICTIONAL STATEMENT

In its previous Opinion in this appeal, this Court reserved jurisdiction to review the District Court's disposition of the Reserve Fund. The District Court's March 5, 1991 Order as supplemented on April 11, 1991, is before this Court pursuant to that reservation of jurisdiction. This Brief is being filed pursuant to the Court's April 25, 1991 Order inviting all parties in interest to file briefs addressing only new issues raised by the District Court's Order.

ISSUE PRESENTED FOR REVIEW

Whether the District Court's 20% reduction of fees awarded for defense of the Houck case should be modified.

STATEMENT OF FACTS

Kevin M. Forde, Ltd. ("Forde") is a party in interest only to the extent that Judge Williams' Opinion determines the amount of fees to which Forde is entitled for services rendered as court-appointed counsel for the Administration Committee and its members in Houck v. Folding Carton Administration Committee, et al., No. 87 C 1253. Forde was not involved in, nor does it express any views as to the District Court's use of the Reserve Fund to establish a permanent national public interest fellowship program.

This Court has previously held that the Committee is entitled to reasonable attorneys' fees from the Reserve Fund for the defense of the Houck case. Houck v. Folding Carton Administration Committee, et al., 881 F.2d 494, 506 (7th Cir. 1989). On remand, counsel for the Committee as well as the Committee members themselves submitted detailed fee petitions supported by contemporaneous daily time records. In its Order determining, among other things, the fees to which counsel involved in Houck were entitled, the District Court found that "there must have been some duplication of efforts between counsel for the Committee members and the Committee members themselves in defending the action in that "the Houck action involved no discovery and only involved the presentation of a motion to dismiss in the district court and the court of appeals." (Mem.Op., pp. 14-15). The Court's opinion, however, does not identify any instance in which the time records reflected a duplication of effort. Based upon its assumption that duplication must have occurred, the Court reduced both the fees requested by the Committee members and those requested by appointed counsel for the Committee by 20%. (Id., pp. 15, 21-22).

ARGUMENT

THE DISTRICT COURT'S 20% REDUCTION OF FEES AWARDED FOR

DEFENSE OF THE HOUCK CASE SHOULD BE MODIFIED

Neither the Court's characterization of the work necessary to defend the Houck case nor its assumption that the efforts of the Committee and its counsel overlapped is supported by the record. The District Court's description of the Houck proceedings as "only" involving "presentation of a motion to dismiss" is an over-simplification. Named as defendants in the case were not only the individual Committee members (themselves respected members of the legal community), but also their respective law firms, Keck, Mahin & Cate, Altheimer & Gray and Ross & Hardies. After the defendant firms notified their respective professional liability carriers, it was determined that Forde should represent the firms as well. Naturally, the managing partners and/or committees of these firms had to be fully informed regarding the nature of the Houck case. Appointed counsel also worked extensively with other named defendants in the Houck case, including Loyola University, Schiff, Harden & Waite and Sachnoff & Weaver. Each of these parties had a keen interest in the presentation of the defense and were involved in every stage of the proceedings.

The case was initially assigned to Judge Leighton who requested the parties to orally address questions relating to the court's jurisdiction in the matter. Moreover, as Forde's 32-page memorandum in support of the Committee's motion to dismiss demonstrates, the Houck case involved a variety of substantive issues ranging from defenses under the False Claims Act, 31 U.S.C. § 3729, et seq., to the immunity of the Committee and its members from suit to various equitable defenses such as estoppel, laches and unclean hands. The resolution of these issues was complicated by the government's belated efforts to set aside the Settlement Agreement in the MDL proceedings. The issues Houck raised could not have been and were not taken lightly. Indeed, in denying the Committee members' request for sanctions, Judge Norgle found that " [i]novative and persistent advocacy should not be unreasonably penalized." (Order, June 2, 1988, p. 11).

The arguments on appeal to this Court required extensive preparation and coordination with counsel for other defendants as well as counsel in the MDL proceedings. Thus, the amount of time expended by counsel in representing the Committee and its members was both necessary and reasonable.

The District Court's assumption that the time spent by appointed counsel for the Committee and the Committee members themselves in defending the Houck case must have involved duplication of effort is not supported by the record, i.e., the contemporaneous time records submitted by all counsel.1  The time records submitted by Committee members reveal that the majority of their time was devoted to reviewing pleadings and orders in the Houck case, including drafts of memoranda prepared by Forde upon which they offered their comments. It cannot be said that this work in any sense duplicated the services of Forde in preparing the drafts and revising them in accordance with the suggestions of their clients.

Time records submitted by the Committee members also reflect that approximately 40% of the Committee members' time on the Houck case was spent prior to July 7, 1987, when Forde was appointed as counsel for the Committee. (See time records of Keck, Mahin & Cate, Specks & Goldberg, Pedersen & Houpt and Alexander R. Domanskis attached to the Committee's Fee Petition). The time spent by the Committee members after Forde's appointment was, in large part, as a result of the necessary review of orders, draft pleadings and memoranda and coordination of the Houck defense with the defense of the government's motions in this case. Significantly, only a small percentage of the Committee members' time after July 7, 1987, was for services such as research or drafting of pleadings which could conceivably have overlapped with the efforts of Forde.2 

In addition, examination of the time records of Forde reveals that the vast majority of research on the substantive issues in the case was performed by law clerks employed by the firm.3  Attorney time was devoted primarily to the drafting of substantive pleadings and memoranda as well as coordination of the defense of the case with counsel for other defendants and with counsel in the MDL proceedings. Nearly two-thirds of the attorney time was logged by the attorney having the lower billing rate. Thus, it is clear that the defense of the Committee and its members by Forde was both efficient and economical. The district court's disallowance of 20% of the fees sought by Forde based upon presumed duplication is therefore not justified by the record in this case.

CONCLUSION

WHEREFORE, in the exercise of this Court's supervisory authority, Forde respectfully requests that the portion of the District Court's March 5, 1991 Order providing for a 20% reduction of the fees requested by Forde as court-appointed counsel for the Committee in Houck be modified and the request by Forde be approved in full.

Respectfully submitted,

/s/Kevin M. Forde

One of the Attorneys for Folding Carton Administrative Committee & Its Members

KEVIN M. FORDE

MARY ANNE MASON

Kevin M. Forde, Ltd.--23414

111 West Washington Street

Chicago, IL 60602

(312)641-1441

 1

An additional fee request of Mr. Forde for $2,268.75 in connection with the first remand was not reduced

 1

Although the reduction in both Forde's fees and the Committee members' fees is based upon presumed duplication, both fee petitions were reduced. In order to eliminate duplicative time, however, it would appear that only one side should be penalized, not both

 2

By counsel's calculation, less than 40 hours of the Committee members' time after July 7, 1987 was devoted to research

 3

Law clerks at Forde devoted in excess of 200 hours to research while Kevin M. Forde and Mary Anne Mason, the two primary attorneys on the case, devoted less than 50 hours to research