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BROWN v. PRO FOOTBALL

December 13, 1993

ANTONY BROWN, et al., Plaintiffs,
v.
PRO FOOTBALL, INC., d/b/a WASHINGTON REDSKINS, et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

  This case comes before this court on plaintiffs' motion for an award of attorney's fees under Section 4 of the Clayton Act, 15 U.S.C. § 15(a). *fn1" Having considered the extensive pleadings and memoranda of both parties, this court shall order further discovery in order to determine the reasonable hourly rate to which plaintiffs' counsel is entitled.

 The case underlying this attorney's fee litigation was an antitrust action brought by a class of professional football players who played on developmental squads of the twenty-eight National Football League teams. The class sued the twenty-eight teams of the National Football League (collectively the "NFL") and the NFL itself for fixing salaries. Plaintiffs prevailed, and a jury verdict awarded plaintiffs $ 30,349,642.00.

 Plaintiffs were represented by Mr. Joseph A. Yablonski, lead counsel and a member of the bar for 27 years; Daniel B. Edelman, who graduated from law school in 1969; John F. Colwell, who graduated from law school in 1985; and Charles R. Both, who graduated from law school in 1968 and who performed discrete tasks in this case. The law firm of Yablonski, Both & Edelman hired two associates to work on the pretrial and trial of Brown: James C. Moser and Robert G. Kaler.

 Plaintiffs claim $ 1,594,367.50 in attorney's fees, *fn2" $ 142,397.51 in litigation expenses, *fn3" and at least $ 21,762.50 in fees and costs incurred in this fee litigation. *fn4" Defendants concede that plaintiffs are entitled to a reasonable attorney's fee, *fn5" but contest the amount. The issue in this case is the amount of fees to which plaintiffs are entitled.

 II. ATTORNEY'S FEES

 "The initial estimate of a reasonable attorney's fee" -- the so-called lodestar fee -- "is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (citations omitted). *fn6" To determine the reasonable attorney's fee in this case, this court will first discuss the reasonable hourly rate and then turn to the reasonableness of the number of hours claimed.

 A. Reasonable Hourly Rate

 The parties appear to agree that plaintiffs' counsel is entitled to a "reasonable attorney's fee" under the Clayton Act. It is an axiom of attorney's fee law that a "reasonable" attorney's fee award is one that "yield[s] the same level of compensation that would be available from the market." Missouri v. Jenkins, 491 U.S. 274, 286, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989). *fn7" The parties disagree on what plaintiffs' counsel could have earned in the marketplace for the legal services they performed in Brown. More fundamentally, the parties dispute what constitutes the best evidence of what plaintiffs' counsel could have earned in the marketplace for that work.

 Defendants contend that plaintiffs' counsels' established billing history constitutes the best evidence of what they could have earned in the market for their services in this case. Defendants rely on the well-established presumption that a firm's established billing rate is the best evidence of what counsel could have earned in the market. See Laffey v. Northwest Airlines, Inc., 241 U.S. App. D.C. 11, 746 F.2d 4, 24-25 (D.C. Cir. 1984), overruled in part on other grounds, Save Our Cumberland Mountains, Inc., v. Hodel [SOCM], 857 F.2d 1516 (D.C. Cir. 1988). Defendants claim that plaintiffs' lead counsel's established billing rate was about $ 295 per hour in 1993, and defendants concede no more liability than that. *fn8"

 Plaintiffs, by contrast, contend that their counsel lack a relevant billing history. Absent a relevant billing history, the best evidence of what their counsel could have earned in the market -- that is, the best evidence of an appropriate fee award -- is a collection of matrices, affidavits, and other evidence presented by plaintiffs recording the prevailing rates charged by similarly experienced lawyers for similar legal services in the District of Columbia. The matrices and other evidence produced by plaintiffs would establish plaintiffs' lead counsel's hourly rate at about $ 325-$ 340 in 1993. *fn9" Plaintiffs' counsel lacks a relevant billing history, plaintiffs argue, on two alternative grounds. The first is based on this Circuit's en banc decision in SOCM; the second invokes the Supreme Court's decision in Blum. The court will consider each in turn.

 1. SOCM

 Plaintiffs' first argument is that their counsel does have a billing history, but it is deflated by counsels' long history of altruistically charging worthy clients reduced rates. Because of their altruism, counsels' billing history does not reflect what they could be earning in the market. Plaintiffs invoke this Circuit's en banc determination that if a firm's billing history does not reflect the firm's market value because the firm has intentionally lowered its rates for non-economic, public-spirited reasons, courts must fix fee awards according to reliable matrices and other evidence that indicate the rates prevailing for the services of similarly experienced lawyers in the relevant market of legal services. See SOCM, 857 F.2d at 1524.

 To succeed under this argument, plaintiffs' counsel must show that the work they have done in this case is in the public interest and that the fees they have accepted for this type of work are below the market rate. See SOCM, 857 F.2d at 1524. Plaintiffs have failed to establish the second prong. *fn10"

 Plaintiffs assert that their counsels' rates are "well below the rates charged by attorneys of comparable skill, experience and reputation in this community." (Pls.' Supplemental Mem., at 4.) Yet plaintiffs have produced scant evidence to support this claim. Plaintiffs rely too heavily on the fact that the fees of defense counsel are higher than theirs, overlooking the fact that defense counsel is only one firm in town and that no single firm's billing rates are presumptively representative of all similar firms across the city. *fn11" Plaintiffs also refer this court to their "answers to interrogatories" for supporting evidence that their customary fees are below the market rate. Yet nothing in plaintiffs' Answers and Objections to Defendants' Interrogatories (June 11, 1993) indicates that counsel charged certain clients -- particularly antitrust clients like the Brown class -- below-market rates.

 Instead of making their required showing that they charge below-market rates, plaintiffs appear to be seeking to circumvent the requirement altogether. *fn12" In plaintiffs' memoranda, plaintiffs' lead counsel, Mr. Yablonski, surprisingly misconstrues SOCM, a case he successfully argued before this Circuit en banc. Under Mr. Yablonski's incorrect reading of SOCM, "statutory fees in the District of Columbia federal courts should be awarded based upon the rates charged for such services in the community, not by counsel's own billing rates." First Supplemental Decl. of Joseph A. Yablonski, at P 2. Mr. Yablonski's reading omits the crucial limitation of SOCM: Counsel may be awarded the prevailing market rates instead of counsels' own billing rates only when counsels' own billing rates have been lowered below market value out of noneconomic, public interest motives. *fn13" See SOCM, 857 F.2d at 1524 ("the prevailing market rate method . . . shall apply . . . to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals.") (emphasis added).

 This Circuit has made this limitation of SOCM clear in Goos v. National Association of Realtors, 302 U.S. App. D.C. 363, 997 F.2d 1565 (D.C. Cir. 1993). In that case, a client, Ms. Goos, relied on SOCM in seeking a fee award based not on her lawyer's contractual rate but on a matrix of prevailing market rates. The Goos court refused to award the matrix-based rate because "there [was] nothing in the record . . . to suggest that Ms. Goos's attorney offered her a discounted rate for altruistic reasons. Goos, 997 F.2d at 1569 (emphasis added). "Absent evidence of a discount," the Goos court refused to disturb the district court's decision not to award the prevailing market rate. *fn14"

 Perhaps plaintiffs have mistakenly assumed that because the SOCM court found in 1988 that Mr. Yablonski's billing practices satisfied the second prong of SOCM,15 plaintiffs need not prove that again to this court. Yet evidence that, in 1988, Mr. Yablonski habitually lowered his rates for worthy clients does not perpetually establish that Mr. Yablonski will always keep his rates low for worthy clients. Plaintiffs are still required to show in this case that nothing has materially changed, i.e., that their counsel still charges below-market rates out of public interest motives.

 Plaintiffs may file supplemental memoranda to show that their counsel (Mr. Yablonski and the others) continue to altruistically lower their rates below market value for their antitrust clients. However, because plaintiffs have not made this showing in their present pleadings, this court cannot now find that they have satisfied the second prong of SOCM. Thus, based on the evidence currently before this court, plaintiffs' first argument that its evidence of prevailing market rates are the best evidence of a reasonable fee award fails.

 2. Blum

 Plaintiffs may still invoke their alternative ground to persuade this court to rely on matrices of prevailing market rates as the best evidence of a reasonable fee award. Instead of trying to show that their counsel has a deflated billing history, under this alternative argument plaintiffs contend that their counsel has no billing history at all, deflated or otherwise. If plaintiffs' counsel indeed lack a relevant billing history to serve as the presumptively reasonable fee award, this court would have to determine the "prevailing market rates in the relevant community" based on plaintiffs' matrices and other evidence, and award counsel that as the reasonable hourly rate. See Blum, 465 U.S. at 895.

 There are two variations on this alternative argument. Under the first variation, plaintiffs argue that their counsel lack any billing history because instead of charging clients by the hour, they have earned their fees through "contingent and partially-contingent statutory-fee litigation (wherein payment for services is totally or partially dependent upon success)." Reply Mem., at 11. Contingent or partially contingent fee work -- like salaried work -- does not produce a billing history. Salaried lawyers who lack billing histories are clearly entitled to fees based on prevailing market rates, see Blum, 465 U.S. at 895; similarly, plaintiffs argue, lawyers paid only by contingent or partially contingent fees also lack billing histories and thus also deserve fees based on prevailing market rates.

 Defendants dispute plaintiffs' claim that their counsel lack an established billing rate. Defendants have produced three successive affidavits of Mr. Yablonski in another case, in which he states that "fee-paying clients have routinely paid my firm at . . . rates [ranging from $ 165 to $ 210 per hour] over the past eighteen months," *fn16" that his "currently [sic] hourly rate for regularly-billed clients is $ 250 per hour and has been that figure since July 1991," *fn17" and that "during the past year, the hourly rates charged by me and members of my firm to fee-paying clients have increased." *fn18" Defendants conclude from these statements that Mr. Yablonski and the members of his firm do indeed have established billing rates, and argue that these established billing rates -- not plaintiffs' matrices -- are the best evidence of what plaintiffs deserve as a reasonable attorney's fee.

 On the basis of this supplemental information, this court can resolve plaintiffs' Blum argument. There is a second variation of the Blum argument which plaintiffs have not pled. In response to defendants' claims that counsel has a billing history -- a billing history which should serve as the presumptively reasonable attorney's fee award -- plaintiffs might have countered that the billing history that defendants cite is not a "relevant billing history." Laffey, 746 F.2d at 24 (emphasis added). Under Blum, if there is no relevant billing history, this court would have to rely on plaintiffs' matrices and other evidence to determine the reasonable fee award.

 Only a relevant billing history serves as the presumptively reasonable rate, because only relevant billing histories are reliable indicators of what counsel might have earned in the market. Suppose that plaintiffs had shown that the billing history cited by defendants records rates that counsel had charged, say, for civil rights matters and not for antitrust matters. There would be no reason to presume that those civil rights rates reflect what counsel might have earned for their work in this case in the more lucrative antitrust market. Fixing fee awards for new and lucrative antitrust work at rates earned for earlier, low-paid, civil rights work would improperly award counsel a rate lower than the market would provide.

 3. Parties' Discovery Requests

 Both plaintiffs and defendants have sought to compel discovery of rate information from each other. Because both parties have sought to compel discovery without first obtaining court permission to conduct discovery, *fn19" both motions to compel will be denied. See Nat'l Ass'n of Concerned Veterans v. Sec. of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1338 (D.C. Cir. 1982) (Tamm, J., concurring) (parties opposing fee applications "must file with the district court a formal request for discovery."). See also id. at 1329.

 Treating defendants' motion to compel and plaintiffs' motion for leave to conduct discovery as proper formal discovery requests, this court shall grant defendants' request and deny plaintiffs' request. Defendants' request to discover whether and at what rates plaintiffs' counsel were paid by the NFLPA simply discovers a subset of what this court has already ordered discovered by its own motion: whether and at what rates counsel has been paid by their clients for antitrust work.

 By contrast, plaintiffs' request to discover the hours and hourly rates of all defendants' lawyers and paraprofessionals in this case would produce only very marginal evidence of what counsel could earn in the market. Defendants' counsel is just one of many District of Columbia law firms, and their particular rates are not ...


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