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KISER v. MILLER

August 29, 1973

Slimp Kiser, on behalf of himself and all other similarly situated plaintiffs, Plaintiff,
v.
Arnold R. Miller et al., Defendants.


Richey, D.J.


The opinion of the court was delivered by: RICHEY

RICHEY, D.J.

 This case is before this Court on remand from the Court of Appeals for the District of Columbia, to determine the question of appropriate counsel fees to be awarded to the attorneys for the Kiser class and the attorneys for the two groups of intervenors, the Adkins group and the Moore group.

 The matter of counsel fees is a subject of great controversy, with the eye of storm fixed on the standards by which the fee is regulated and set. No standard can be applied in a vacuum. Therefore, before turning to the merits of the award, the Court believes it will be helpful to establish a framework of facts and events which produced the posture of this case.

 I. History of Litigation

 This case commenced as a personal suit by Slimp Kiser, a Kentucky coal miner, against the former Trustees of the United Mine Workers of America Welfare and Retirement Fund of 1950. The original complaint was later amended to include all miners who had retired after February 1, 1965 and who had been denied pension benefits because they did not meet the last signatory employment requirement which the defendant trustees enacted in Resolution No. 63 on January 4, 1965. The Court determined that a valid class existed by Order entered August 6, 1971 which was later amended on January 4, 1972. The Kiser suit was consolidated with the suit of Edwin Moore, James Walker, and Estill Smith versus the defendant Fund (C.A. 2088-71). And subsequently Messrs. Milford Adkins, James Hensley and Albert Madden were granted leave to intervene in the consolidated action.

 The suit sought to compel the Defendants to pay the Plaintiffs their pensions. The defendants had denied the Plaintiffs' pension applications on the ground that they had not worked in the coal industry as an employee of an operator signatory to the National Bituminous Coal Wage Agreement of 1950 for at least one full year immediately prior to permanent retirement. In a Memorandum Opinion of January 19, 1973 this Court held that the last signatory employment requirement was invalid as a basis upon which to deny the Plaintiffs their pensions. See, Memorandum Opinion of January 19, 1973, 353 F. Supp. 736, et seq., for a complete discussion of the issues and the Court's decision.

 The defendant trustees moved for reconsideration of this Court's January 19 decision. Upon reconsideration, the Court entered a Supplemental Opinion and Order on February 6, 1973 which reaffirmed the Court's decision with respect to the invalidity of the last signatory employment requirement. However, the Court did amend its original order by deleting the requirement that the trustees pay interest at 6% per annum on the total amount of the accrued pension, and further provided that the payment of accrued pensions should be from the first day of the month following the date of denial rather than from the actual date of denial.

 The Defendants appealed. On July 23, 1973 the United States Court of Appeals for the District of Columbia Circuit entered an order authorizing this Court to rule on Plaintiff-Appellees' request for counsel fees and further directed that ". . . (2) the appellant Fund is directed forthwith to pay to those members of the plaintiff class who have been entered upon the pensions rolls of the Fund as a result of this Court's Order of May 24, 1973 an amount equal to two-thirds of the total amount due said pensions; (3) the appellant Fund is directed to place the remaining one-third of the amount due members of the plaintiff class who have been placed on the pension rolls into an interest bearing account with a recognized banking institution in the District of Columbia until further order of this court or final disposition of this appeal on the merits; . . ."

 In view of the foregoing, the Court undertook an in-depth consideration of the matter of appropriate attorney's fees. All counsel presented requests that the defendant fund pay their attorney's fees. They each also presented various contingent fee agreements.

 Counsel for the Adkins group petitioned for $14,485.83 in fees and $97.26 in costs to be taxed to the Defendants. Alternatively, they requested that the Court honor their contingent fee agreements which sought a percentage of only the accrued (past) pension benefits rather than out of future benefits. The agreements provided for a flat fee of $1,500 from each client out of their accrued pensions plus 33 1/3% of the accrued pension over $1,500 from Mr. Adkins ($2,400) and 50% of the accrued pension over $1,500 from Messrs. Madden and Hensley. The Adkins group's attorney expended 286 hours on the case, according to their counsel's affidavit.

 The Kiser attorneys also had a contingent fee agreement with the original Plaintiff, Mr. Kiser, for one-third of his accrued pension. As partial compensation for the 2,065 hours logged as class counsel, the Kiser attorneys seek 33 1/3% of each class miner's accrued pension to be deducted from the total recovery of accrued benefits plus 10% of each miner's future pension and benefits ($1,600,000) to be paid by the Fund from general revenues over the next ten years. Counsel has informed the Court that 401 miners have signed a "fee agreement" consenting to this contingent fee formula.

 The "consents" to Kiser attorneys fees has caused some confusion in the record. The consent forms were mailed to the members of the class on January 22, 1973, several days after the judgment was entered in this case and the Court informed counsel that it would determine the question of attorneys fees. The form was attached to a covering letter describing the successful judgment. In the last paragraphs of the ...


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