The opinion of the court was delivered by: HOLTZOFF
There is one element in this case that makes the task of the Court a little easier than it otherwise would be. Although there are some expressions to the contrary, it is the view of this Court that in such a case as this, it is not the function of the Court to fix the fee that counsel should charge his client, and then assess that against the defendant. My conception is that it is the duty of the Court to determine what contribution should be made by the defendant toward the fees of plaintiffs' counsel. I say that lest there be any misunderstanding. It is not my intention to determine or express an opinion or even an intimation how much plaintiffs' counsel should charge his client. I might say in passing that in my opinion the amount that the plaintiffs' counsel is entitled to charge his client is much larger than the amount I intend to award as the amount to be paid by the defendants.
The Court is not unmindful of the fact, too, that the triple damage provision, although it has a salutary purpose as a matter of public policy, sometimes weighs heavily on defendants, and is in itself a severe and burdensome penalty.
The Court has read the cases which the plaintiffs cite in their memorandum, and has endeavored to analyze them.
In the case of Cape Cod Food Products v. National Cranberry Ass'n, D.C., 119 F.Supp. 242, the single damages awarded by the jury were $ 175,000. The attorneys' fees allowed by the eminent jurist who presided at the trial of that case amounted to $ 35,000. If this Court's calculation is correct, that was twenty percent of the single damages.
In Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846, 858-859, the single damages awarded by the jury were $ 375,000. The District Court had allowed a counsel fee of $ 150,000. The Court of Appeals for the Eighth Circuit in an opinion written by Chief Judge Gardner reduced that amount to $ 100,000. This Court has calculated that to be 26.6, approximately, percent of the single damages.
In Milwaukee Towne Corp. v. Loew's, Inc., 7 Cir., 190 F.2d 561, decided by the Court of Appeals for the Seventh Circuit, the single damages awarded by the District Court were, approximately, $ 432,000, and the counsel fee was $ 225,000. The Court of Appeals reduced the single damages to, approximately, $ 313,000, and the counsel fees to $ 75,000, which this Court calculates to have been 24 percent.
The case cited by defense counsel, Paramount Film Distributing Corp. v. Applebaum, 5 Cir., 217 F.2d 101, 103, was decided by the Court of Appeals for the Fifth Circuit, and involved treble damages of $ 450,000, which means $ 150,000 single damages. The attorneys' fees allowed were $ 40,000.
Using these cases as more or less of a yardstick, the Court is going to award a counsel fee of $ 45,000, which would be about 23 or 24 percent of the single damages. That is within the framework of the cases relied upon by counsel. The Court will allow an attorneys' fee of $ 45,000.
The Court repeats that this is not to be taken as an intimation of what the plaintiffs' counsel should charge his client, but merely a direction that this should be the contribution which the defendants should make to the counsel fees.
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