Opposition Brief — International Union of Operating Engineers, Local 18 v. Murphy

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f Supreme Court, U.S.

FILED

JAN 27 1986

JOSEPH F. SPANIOL, JR.

No. 85-1107 ae...

i. —

In the Supreme Court of the United States

October Term, i985

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 18, et al.,

Petitioners,

vs.

WILLIAM F. MURPHY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Alan Miles Ruben,

Counsel of Record

c/o Cleveland-Marshall

College of Law

Cleveland State

University

Cleveland, Ohio 44115

(216) 687-2310

Counsel for Respondent

January 27, 1986

COUNTER STATEMENT OF QUESTIONS PRESENTED

1. Whether the Courts below properly

determined the amount of attorney fees to

which Respondent was entitled under the

"Common Benefit" exception to the

"American Rule" by reference to the number

of hours reasonably expended on the

litigation multiplied by a reasonable

"prevailing market" hourly rate pursuant

to a modified "lodestar" standard because

the "results obtained" did not warrant a

downward adjustment and Petitioners failed

to establish any other basis for a

downward adjustment?

2. Whether Petitioners are barre

from contesting the calculation of the

amount of attorney's fees awarded because

they agreed to waive evident iary hearing

and consented to the District Court

determining the amount of counsel fees on

the basis of the affidavits of hours

expended and rates charged by Respondent's

counsel and of hourly charges of

comparable attorneys in the community for

like services?

3. Whether this Court ought to

consider a question not presented to or

passed upon by the Court of Appeals,

overrule its decision in Hall v. Cole and

the decision of every other court which

has considered the issue and hold that the

existence of a fee obligation is 4

prerequisite to the award of attorneys

fees under the "common benefit" equitable

doctrine to the "American Rule" in LMRDA

proceedings thereby unjustly enriching

union members at the expense of

Plaintiff's attorney and restricting the

future opportunity of union members’ to

vindicate their LMRDA rights?

4. Whether the attorney fee award

subject of requested review is

independently supportable under applicable

pendent state law and under the "Bad

Faith" exception to the "American Rule" on

account of Petitioners' outrageous

misconduct which gave rise to Respondent's

substantive claims?

TABLE OF CONTENTS

QUESTIONS PRESENTED... ..eeeeeeeees i

TABLE OF CONTENTS... ccceeee esses AV

TABLE OF AUTHORITIES.....cee0e000- Vili

COUNTER-STATEMENT OF THE CASE..... 1

REASONS FOR DENYING THE WRIT...... 25

I. THE COURT BELOW PROPERLY

DETERMINED THE AMOUNT OF

ATTORNEY FEES TO WHICH

RESPONDENT WAS ENTITLED

UNDER THE "COMMON

BENEFIT" EXCEPTION TO THE

“AMERICAN RULE" BY

REFERENCE TO THE NUMBER

OF HOURS REASONABLY

EXPENDED ON THE

LITIGATION MULTIPLIED BY

A REASONABLE "PREVAILING

MARKET" HOURLY RATE AS

REQUIRED BY THE MODIFIE£D

"LODESTAR" STANDARD

ADOPTED IN NORTHCROSS

v. BOARD OF EDUCATION OF

MEMPHIS CITY SCHOOLS BECAUSE

THE "RESULTS OBTAINED"

DID NOT WARRANT A DOWNWARD

ADJUSTMENT AND

PETITIONERS FAILED TO

ESTABLISH ANY OTHER BASIS

FOR A DOWNWARD ADJUSTMENT

SPR 42 2 Besa a eS Se 2 = eeeeeee#b»ees 25

The Modified "Lodestar"

Standard Adopted By The

Sixth Circuit In

Northcross v. Board of

Education of Memphis

City Schools Is An

Appropriate Standard For

Determining The Amount Of

Attorney Fees To Which

Respondent Is Entitled

Under The "Common

Benefit" Exception To The

"American Rule," And Is

Fully Consistent With The

Standards Established By

This Court And Those

Applied By Other Circuits

Pursuant To Fee Shifting

Statutes And The Exercise

Of The Courts' Equitable

DRO EO, 2 5 64466006488

Petitioners Are Barred

From Contesting The

Calculation Of The Amount

Of Attorney Fees Awarded

By The District Court And

Affirmed By The Sixth

District Because They

Agreed To Waive

Evidentiary Hearing,

Consented To The District

Court Making A

Determination Solely On

The Basis Of Affidavits

Of Hours Expended And

Office Rates Charged By

Respondent's Counsel And

Of Hourly Charges Of

Comparable Attorneys’ In

The Community For Like

Ede

Services, And Failed To

Identify Any Bases For

Reducing The Hours’ So

Submitted Or, The Hourly

Rates Found Appropriate

By The District Court....

The Courts Below Properly

Found That The Results

Obtained By Respondent In

Vindicating The "Free

Speech" And "Assembly"

Rights Of Union Members,

In Substantially

Democratizing Union

Procedures And In

Restructuring The Union's

Exclusive Hiring Hall

System So As To Assure

Its Integrity, Conferred

A Benefit Upon Union

Members Justifying The

Counsel Fees Awarded And

That No Part Of The

Compensation Was

Attributable To

Unsuccessful Unrelated

oP Fre TTTCrers

THE FACT THAT RESPONDENT

HAD NO FEE OBLIGATION TO

HIS COUNSEL WHOSE

COMPENSATION WAS

CONTINGENT UPON COURT

AWARDED ATTORNEY FEES

DOES NOT AFFECT

RESPONDENT'S ENTITLEMENT

TO COUNSEL FEES AND

REQUIRE THAT RESPONDENT

AND HIS COUNSEL BEAR THE

EXPENSE OF LITIGATION

WHICH HAS CONFERRED A

Iif.

CONCLUSION

SIGNIFICANT COMMON

BENEFIT UPON THE MEMBERS

OF THE TINION. ee @eeeee#see#

THE AWARD OF ATTORNEYS

FEES IN THIS PROCEEDING

IS INDEPENDENTLY

JUSTIFIED UNDER THE "BAD

FAITH" EXCEPTION TO THE

AMERICAN RULE AND UNDER

STATE LAW BECAUSE THE

VIOLATION OF RESPONDENT'S

LMRDA RIGHTS WAS THE

PRODUCT OF PETITIONERS '

OUTRAGEOUSLY MALICIOUS

AND OPPRESSIVE CONDUCT..

ae @464 666 8 2S 868 SEES Ee ee 9 2 2 &

TABLE OF AUTHORITIES

Cases

Bise v. International Brotherhood

of Electrical Workers, 618

F.2d 1299 (9th Cir. 1979)......

Bishop v. Furtado, 635 F.2d 915

(1st Cir. 1980) .cccccccsecccess

Blum v. Stenson, 79 L.Ed.2d 891

FREED Sa .004 606606004608 644600065

City of Detroit v. Grinnell Corp.,

495 F.2d 448 (2d Cir. 1974)....

City of Riverside v. Rivera,

763 F.2d 1580 (9th Cir. 1985),

cert. granted, No. 85-224.. 42

Columbus Finance, Inc. v. Howard,

42 Ohio St.2d 178, 327 N.E.2d

BOD Saree acceckendbecseaurien

land v. Marshall, 641 F.2d

80 (D.C. Cir. 1980) (en banc).

Fairley v. Patterson, 493 F.2d

598 (Sth Cir. 1974) .ccccccccees

Graves v. Barnes, 700 F.2d 220

ioe Gey Ss che denddceuwees

Hall v. Cole, 412 U.S. 1

(1973) wc cccccececeseseseceseces

viii

58-59

32, 33%

37, S2

42, 43-

44, 54,

55, 56,

27, 38

Hensley v. Eckerhart, 461 U.S.

424 (1983) wc crcccnccccesncccces

Johnson v. Georgia Highway

Express, Inc., 488 F.2d

714 (StH Cir. 1974) wccccccccces

Lindy Brothers Builders Inc.

of Philadelphia v. American

Radiator & Standard Sanitary

Corp., 487 F.2d 161 (3rd Cir.

1973), appeal following remand,

540 F.2d 102 (3rd Cir. 1976)...

uiston v. Marsh, 707 F.2d 1082

[ou Se Be sbacovcsevacseds

Mm)

Mills v. Electric Auto-Lite Co.,

wee Galks BU Cet 4466664%400%

fonroe v. County Board of

Education, 505 F.2d 109

[SER CEP. WPA) vcecevcnccscaee

Northcross v. Board of Education

of Memphis CASy Schools,

611 F.2d 62 (6th Cir. 1979)...

Pawlak v. Greenawalt, 713 F.2d

S CJES Gane SOS) 6666 e66neeen

Philadelphia Division, Pennsylvania

Telephone Guild v. Pennsylvania

Telephone Guild, 573 F.Supp.

314 (E.D. Pa. 1983) «svvesss eves aay Go”

Richardson v. Communication Workers,

530 F.2d 126 (8th Cir.), cert.

denied, 429 U.S. 824 (1976).... 58

Riddell v. National Democratic

Party, 712 F.2d 165 (5th ip OP

L983) we ccevese'es -eeeee#e#e# @ seeese## 32

Shimman v. Local 18, 744 F.2d

1226 (6th Cir. 1984) (en banc),

cert. denied, 105 S.Ct. 1191

[ZEN 6 eas 6bec seb es 5a Tater - ie i

26, 39

Yablonski v. United Mine Workers

of America, 466 F.2d 424

(Ditts CLbs 2072) occ ee vena kh bee 44

Statutes and Rules

23: 2.8.8... Dee ev hc he RO OK 4

29: UcBces. BOSE AOe 65 kik hee kieeeans Ae SD,

a3 GiB. Gs OCC aO Oe vin +e 4K ee eee ae.

S, 2h, 26

29 U.8:.0s: GOCCION Bibs fv sick ek tanies 4

29 U.S.C. GOCCien BOG ki bee ee Cie es 4

Pe ee

29 U.S.C. Section 481(C)..cccsecses 4

29 U.S.C. BOGCION 463... cicscvsives 4

29 U.S.C. Section 501 (a) ..ccvscoess 4

29 U.8.C. S@CECION BS9i 60s cscawvets ee 4

29 U.S.C. Bection S29... 06> 65 668 8 4, ©,

29 U.S.C. SeCELON 530s. csvsse ewes 4

42 U.S.C. Section 1985(3) ....ss. <a. o>

9, 19, 20, #2

42 U.S.C. Section 1966... scicewe oa

20, af, 46

eo Pe ae i | Pegecrne cwiga oe

Other Authorities

, Court Awarded Attorney Fees

Report of the Third Circuit Task

Force, October 8, 1985, 771 F.2d

(No. Specevensnesesesenresseere 29, 32

Berger, "Court Awarded Attorneys'

Fees: What is 'Reasonable'"?,

126 U. Pa. L. Rev. 281 (1977).. 29,

53-54

COUNTER-STATEMENT OF THE CASE

This proceeding was brought by

Respondent, William F. Murphy, a member of

a reform faction of a corruptly

administered labor organization, who was

the target of the entrenched union

officers' systematic policy of crushing

dissent by starving-out, driving-out, and,

if necessary, wiping-out opponents.

The Complaint for reinstatement,

damages, and injunctive relief was filed

on December 21, 1973 under Sections 101

and 102 of the Labor-Management Reporting

and Disclosure Act of 1959, (25 U.8C.

Sections 411, 412) (hereinafter "LMRDA"),

charging that Local 18 of the

International Union of Operating Engineers

and five of its officer-business agent

employees, John Possehl, (Business

Manager); Charles Rutherford, (President) ;

John Frank, (Vice-President) ; Frank

Miller, (Conductor and currently the

Business Manager) ; and S. A. Blair,

(Chairman, Elections Committee), conspired

to suppress dissent and perpetuate

themselves and other members of their

administration in office and power and in

pursuit of this objective systematically

attempted to:

L. wipe Murphy out of the

Union by a planned

campaign of violence

as a result of which

Plaintiff was severely

beaten-up on two

occasions,

2. starve Murphy out of

the Union by covert

manipulation of Local

18's exclusive hiring

hall system so as_ to

deprive him of job

opportunities, and

3. Grive Murphy out of

the Union by

suspending him from

membership after a

"Kangeroo" trial whose

processes were manip-

ulated to convict him

and to which numbers

of out-of-town members

were transported under

instructions from the

officers to vote

“euiity.*

On May 23, 1975 Murphy moved for a

Preliminary Injunction alleging that

Defendants had violated his LMRDA rights

by refusing to reinstate him to Union

membership following the expiration of his

two years suspension but, instead,

secretly voting at an Executive Board

meeting to expel him because he had filed

"litigations" against Local 18. On June

5, 1975 the Court below ordered Murphy

reinstated as a member in good standing

retroactively effective to May 15, 1974,

the date on which the period of suspension

ended.

After motions to dismiss and for

summary judgment had been denied, trial

before Judge Thomas D. Lambros’ sitting

without jury, commenced on February 26,

1976, continued intermittently for twenty-

three days and concluded on January 4,

i977.

At the close of the evidence Murphy

moved to further amend his Complaint

pursuant to F.R.C.P. No. 15(b) to state

claims inter alia, under several

additional sections of the Labor-

Management Reporting and Disclosure Act of

1959, viz., 29 U.S.C. Sections 414, 440,

481(c), 483, 50l(a), 523, 529 and 530; the

Civil Rights Act; 42 U.S.C. Section

1985(3); Section 301 of the Labor

Management Relations Act; 29 U.3.C.

Section 185 and six (6) pendent state law

claims, viz, assault and battery; breach

of contract; tortious interference with

union associational rights; breach of

fiduciary duty; and conspiracy.

On July 18, 1978 Judge Lambros filed

his Findings of Fact and Conclusions of

Law.

In an Opinion remarkable for its

thoroughness, comprehensiveness and

clarity, the Court below found the

evidence established the existence of a

conspiracy to suppress’ the dissident

movement and injure Murphy through the

perpetration of unlawful acts and

violations of his rights under federal and

state law. (F.F. 97, 1177 pp. A.154-158.,

A.281-282).

Accordingly, Judge Lambros held that

Murphy had been:

l. arbitrarily and dis-

criminatorily fined,

Suspended and other-

wise disciplined in

violation of 29 U.S.C.

Sections 41l1l(a)(5) and

529, (F.F. 101-E; pp.

A.198-199) and his

state law contractual

rights (F.F. 114A; pp.

A.276-277);

2. Secretly expelled and

officially excluded

from participation in

Union activities for

exercising his feder-

ally protected rights

in violation of 29

U.8.C. Sections 412

and 529 (F.F. 102

C.1.7; pp. A.204-205) ;

Subjected to intim-

idation, physical

violence and economic

aiscrimination in

retaliation for his

status and activities

as a member of the

dissident political

faction of Local 18 in

violation of Sections

29 vies Section

411(a) (1) ana (2)

(F.F. 162 B.1.% ‘Bp.

A.199-202);

arbitrarily, discrim-

inatorily and offi-

cially barred from use

of the job referral

system and hence

prevented from obtain-

ing employment in

violation of 29 U.S.C.

Sections 411(a)(5) and

529. (FoF. 102 EB.i.,

2; pp. A.222-224) and

29 U.S.C. Section 185

(F.F. 108; pp. A.249-

251);

Deprived of his

L.M.R.D.A. rights as a

Judge

result of a class-

based, invidiously

discriminatory con-

spiracy in violation

of the Civil Rights

Act, 42 U.S.C. Section

1985(3) (F.F. 110. g;

pp. A.265);

Physically assaulted

and beaten at two

Union meetings by

agents covertly acting

at the direction of

the Union and

Defendants Possehl and

Frank in violation of

his state law rights

(F.F. 113; pp. A.275-

276), and

Entitled to sue on

behalf of the member-

ship to recover for

the Union treasury

Union funds diverted

by Defendant Possehl

to defend civil and

criminal actions

brought by Murphy and

other dissidents

against tortfeasors

secretly acting at

Possehl's direction.

(F.F. 116; pp. A.280-

281).

Lambros accordingly awarded

as follows:

Compensatory damages,

relief

against Defendants

Possehl, Frank and the

Union, jointly and

severally, in an

amount to be

determined, for

Murphy's loss of

wages, retirement

benefits, and employ-

ment opportunities

under 29 U.S.C.

Sections 411, 412 and

against the Union upon

pendent State Law

claims for breach of

the implied contract

between a Union and

its members.

Compensatory damages

under 29 U.S.C.

Sections 411 and 412,

against Defendants

Possehl, Frank and the

Union, jointly and

severally, in the

amount of Ten Thousand

Dollars ($10,000) for

Plaintiff's pain and

suffering, humilia-

tion, emotional

distress, mental.

anguish and depriva-

tion of the right to

engage in union

activities for a

period of two years,

and upon pendent State

Law claims for the

tort of assault and

battery. The compen-

sation awarded against

the three defendants

for humiliation,

embarrassment, pain

and suffering, mental

anguish and emotional

distress was also

founded upon 42 U.S.C.

Section 1985(3).

Damages in the amount

of Three Thousand Five

Hundred Dollars

($3,500) payable to

the Treasury of Local

18 against Defendant

Possehl.

Punitive damages in

the amount of Thirty

Thousand Dollars

($30,000) against

Defendant Possehl; in

the amount of Twenty

Thousand Dollars

($20,900) against

Defendant Frank, and

in the amount of One

Hundred Fifty Thousand

Dollars ($150,000)

against Local 18 upon

pendent State Law

Claims for assault and

battery and conspiracy

and under 42 U.S.C.

Section 1985(3). The

award against the

Union was further

based upon 29 U.S.C.

Section 185.

Injunctive relief

under 29 U.S.C.

Sections 4ll and 529,

and 29 U.S.C. Section

185, as well as under

pendent State Law,

permanent. jOlning

the Ui from

interfering with

Plaintiff's exercise

of is Section 411]

rights, and discrimin-

ating against

Plaintif in the

operation of the

referral system. To

insure against abuse,

the Court ordered that

the referral cards of

registrants and all

work orders were to be

dated and time-

stamped; lists of the

work orders re

were to be c

and posted for seven

days in each D

office not less

frequently than every

120 days, and finally,

the referral deck was

to be made available

to members for

inspection and copying

for a reasonable

period of time

immediately prior to

and following each

a.)

(pp. A.313-314 and

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development of democratic union processes.

(p. A-311)

All other claims advanced by

Murphy were denied, and judgment was

entered in favor of Defendants Rutherford,

Blair and Miller on all counts.

The Court deferred consideration of

Murphy's Motion for Attorneys Fees pending

further submission of the parties.

On October 17, 1978, the Defendant

Union filed its proposed plan for the

enhancement of communication among members

and the democratization of its processes,

and subsequent]y moved to vacate the

punitive damage award.

On September 3, 1980 a motion was

made to vacate the punitive damage award

against the Defendant John Frank.

A series of post-judgment conferences

were held by Judge Lambros with counsel

for the parties concerning the issue of

attorneys fees, the minutes of which were

filed on June 23, 1980, September 8, 1980

and October 2, 1980.

Pursuant to agreement reached among

counsel at conference with the Court on

October 2, 1980, issues of Plaintiff's

entitlement to an award of attorney's fees

and the amount of such award were left for

determination by the Court, without

hearing, upon the affidavits of Murphy's

counsel itemizing the hours expended in

the cause and their hourly charges, and

the filing by the parties of the

affidavits reflecting hourly charges of

attorneys in the Greater Cleveland Area

for comparable services.

On September 15, 1981 Plaintiff moved

for contempt sanctions against Defendant

Local 18 and its then Business Manager

Earl A. Erwin for failure to comply with

the Court's intunctive order respecting

the time-stamping and posting of work

orders and registration cards and the

right of the members to inspect and copy

certain data from those records.

On November 30, 1981 the Court issued

a post-judgment order which, as amended on

December 2, 1981, directed Local 18

through its Business Manager Earl A. Erwin

to implement fully on or before December

31, 1981, the injunctive relief set forth

in the Court's judgment dated July 18,

1978.

On February 1, 1982 Plaintiff again

moved for contempt sanctions on the ground

that the Defendants had remained

recalcitrant and had failed to comply with

the Court's post-judgment orders

respecting the operation of the referrai

system.

To resolve the motion for sanctions,

the contempt proceedings were referred to

Magistrate David S. Perelman for the

purpose of developing, with the

participation of counsel, a plan to reform

the referral system operation consistent

with the objectives of the Court's order.

A proposal respecting the subsequent

operations of the referral system was

ultimately drafted and submitted to the

Court.

On October 14, 1982 Judge Lambros

issued a Post-Judgment Memorandum Opinion

and Order.

Therein, the Court vacated the

punitive damage award against the Union

and adopted as part of its injunctive

relief the following additional proposals

advanced by the Union:

i» Publication in the May

and October issues of

the Buckeye Engineer

of Title I, "the Bill

of Rights" of the

Labor Management

Reporting and Disclos-

ure Act of 1959.

Publication of a

notice in this news-

letter, that copies of

the Union's Constitu-

tion and By-Laws are

available in the Union

office on request.

Publication in the

newsletter prior to

each election of all

provisions of the

Constitution and By-

Laws pertaining to

such election.

Publication in the

newsletter prior to

each election a notice

that two publications

of the Department of

Labor, “Electing Union

Officers" and "Rights

and Responsibilities

under the LMRDA", are

available on request.

Allowing each "major

candidate" five

minutes to speak at a

general membership

meeting and a district

meeting during the

period between nomin-

ations and election.

Allowing each candid-

ate to inspect, but

not copy, alist of

the names and last

known addresses of all

members for up to "two

eight (8) hours days".

The Court also incorporated in its

injunctive relief the terms of the

proposed settlement of Murphy's then

pending motion for contempt sanctions

against the Union for failing to comply

with the Court's remedial order respecting

the operation of the referral system, and

treated the contempt motion as having been

withdrawn.

The terms for reform of the referral

system included:

1. An "anti-steering"

provision prohibiting

agents of the Union

from recommending to

employers the

requesting of desig-

nated members for job

opportunities.

Zs An anti-discrimination

clause prohibiting

agents of the Union

from suggesting to

employers not to

request a particular

member for employment

or to terminate the

employment of any

member.

Standardization of

equipment categories

for purposes of

filling job orders.

Date and time-stamping

of registration cards,

and job orders.

The equipping of

dispatch telephones

with an adequate

telephone recording

device to provide a

verifiable means of

recording the sequence

of job referral calls

made, the time and

date of such calls and

the conversations.

Weekly posting of job

orders and the

dispatches made

pursuant thereto.

Allowing members to

inspect registration

cards before and after

Union meetings, and to

copy once every 15

days from up to ten

(10) registration

cards of members who

had been dispatched to

jobs during the

preceding period.

8. Formulation of work

referral rules and the

posting thereof in

such district office.

(pp. A.433-453).

After defendant John Frank agreed to

refrain from seeking or holding any office

in Local 18 for a period of five (5)

years, the Court below also granted the

Defendants' Motion to Vacate the Award of

Punitive Damages against him.

Finally, the Court determined tha-

Murphy was entitled to the award of a

reasonable attorneys' fee because (1)

Defendants had acted maliciously and in

bad faith against him, (2) the vindication

of Murphy's rights resulted in a "common

benefit" to the Union and its members and

(3) Murphy was the prevailing party in a

proceeding to enforce the provisions of 42

U.S.C. Section 1985(3) within the meaning

of the Civil Rights Attorney's Fees Awards

Act of 1976, 42 U.S.C. Section 1988. (pp.

A.401-413).

Applying the Sixth Circuit's

guidelines in Northcross v. Board of

Education of Memphis City Schools, 611

F.2d 624 (6th Cir. 1979) for the

calculation of attorneys fees, the Court

below awarded counsel fees to Murphy's

lead counsel in the amount of $100,232.50

and to co-counsel in the amount of

$33,107.86. (pp. A.413-426). The Court

also awarded costs against Defendants in

the amount of $1,821.46.

Thereafter, Defendants appealed from

the District Court's Judgments of July 18,

1978 and October 14, 1982. Murphy cross-

appealed the vacation of the punitive

damages award against Local 18, and the

District Court's refusal to tax his expert

witness fees as costs and to order the

Union to offer dissidents equal access to

the Union's monthly newsletter.

On September 30, 1985 the Sixth

Circuit Court of Appeals, speaking through

Judge Albert J. Engel, affirmed the

District Court's judgments.

The Sixth Circuit determined that

although Murphy's Civil Rights claim under

42 U.S.C. Section 1985(3) was barred by

its decision in Shimman v. Local 18, 744

F.2d 1226 (6th Cir. 1984) (en banc),

cert. denied, 105 S.ct. 1191 (1985), all

of the District Court's findings as to

liability of the Defendants and all of the

compensation and equitable relief afforded

Murphy were properly founded upon the

Labor Management Reporting and Disclosure

Act, 29 U.S.C. Sections 411, 412 (pp.

A.491). Accordingly, the Court found it

unnecessary to review the other

independent and essentially cumulative

state and federal law grounds relied upon

by the District Court (p. A.491).

Responding to the Union's challenge,

the Court of Appeals noted that the

District Court's award of attorneys' fees

to Murphy could not be upheld either under

the Civil Rights Attorney Fee Act of 1976,

42 U.S.C. Section 1988, since Murphy's

claim under 42 U.S.C. Section 1985(3) was

barred, or upon the "bad faith" exception

to the American Rule since the Union's bad

faith was found in its conduct giving rise

to the substantive claim and the rule in

the Sixth Circuit was that the bad faith

had to be manifest in the bringing or

conducting of the litigation. (pp. A.486-

487) Shimman v. International Union

of Operating Engineers, Local 18, 744 F.2d

1226, 1233 (6th Cir. 1984) (en banc),

cert. denied, 105 S.Ct. 1191 (1985).

Nonetheless, the Court held that

"Murphy had demonstrated fully his

entitlement to recovery of attorneys' fees

on a ‘common bencfit' theory." (A-487)

Rejecting the Union's further

contention that the amount of the award

was excessive because the District Court

failed to take into account the asserted

lack of success Murphy allegedly achieved,

the Sixth Circuit held "Murphy's claims

were closely interrelated and arose fron

one common core of facts" and that "Murphy

received compensatory damages and

injunctive relief that signified a

substantial victory." (pp. A.489-490)

The Court of Appeals further held that the

District Court's calculation of attorneys'

fees based upon a determination of the

number of hours reasonably expended and a

reasonable hourly rate of compensation was

a proper approach and would subsume and

take into account all of the relevant

factors identified in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th

REASONS FOR DENYING THE WRIT

THE COURT BELOW PROPERLY DETERMINED

THE AMOUNT OF ATTORNEY FEES TO WHICH

RESPONDENT WAS ENTITLED UNDER THE

“COMMON BENEFIT" EXCEPTION TO THE

"AMERICAN RULE" BY REFERENCE TO THE

NUMBER OF HOURS REASONABLY EXPENDED

ON THE LITIGATION MULTIPLIED BY A

REASONABLE “PREVAILING MARKET" HOURLY

RATE AS REQUIRED BY THE MODIFIED

“LODESTAR" STANDARD ADOPTED IN

NORTHCROSS v. BOARD OF EDUCATION OF

MEMPHIS CITY SCHOOLS BECAUSE THE

"RESULTS OBTAINED" DID NOT WARRANT A

DOWNWARD ADJUSTMENT AND PETITIONERS

FAILED TO ESTABLISH ANY OTHER’ BASIS

FOR A DOWNWARD ADJUSTMENT.

A. The Modified "Lodestar" Standard

Adopted By The Sixth Circuit In

Northcross v. Board Of Education

Of Memphis City Schools Is An

Appropriate Standard For

Determining The Amount of

Attorney Fees To Which

Respondent Is Entitled Under The

"Common Benefit" Exception To

The "American Rule," And Is

Fully Consistent With The

Standards Established By This

Court And Those Applied By Other

Circuits Pursuant To Fee

Shifting Statutes And The

Exercise of The Courts'

Equitable Powers.

The District Court found that

Respondent was entitled to reasonable

attorney fees pursuant to 29 U.S.C.

Section 412, on account of the vindication

of rights enumerated in 29 U.S.C. Section

411, on both the "common benefit" and "bad

faith" exceptions to the "American Rule."

(A-401-408) The District Court also found

attorney fees were recoverable under the

Civil Rights Attorney's Fees Awards Act of

1976, 42 U.S.C. Section 1988. (A-410-

412). In order to achieve a "uniform

approach" to fee determination, the

District Court applied the analysis of

Northcross v. Board of Education of

Memphis City Schools, 611 F.2d 624 (6th

Cir. 1979), cert. denied, 447 U.S. 911

(1980) (hereinafter "Northcross").

In Northcross the Sixth Circuit

adopted the modified "lodestar" approach

popularized by the Third Circuit's

decisions in Lindy Brothers Builders Inc.

of Philadelphia v. American Radiator &

Standard Sanitary Corp., 487 F.2d 161 (3rd

Cir. 1973), appeal following remand, 540

F.2d 102 (3rd Cir. 1976), and required,

subject to specified adjustments, an

initial calculation of Section 1988 fees,

to be based upon the number of hours

reasonably expended ata "fair market"

hourly rate. As to the latter element,

the Court stated that for counsel who do

not maintain a private practice "rates

customarily charged in the community may

be consulted for guidance." (A-420; 611

F.2d at 636-638).

Petitioners assert that the

Northcross analysis is contrary to that

adopted by every other circuit and to the

standard enunciated by this Court in

Hensley v. Eckerhart, 461 U.S. 424 (1983)

(hereinafter "Hensley") (Petition, pp. 8,

10, 11, 18). They are plainly wrong.

First, Petitioners seem to complain

that the Northcross standard, as appiied

by the Courts below, fails to consider any

of the twelve "factors" identified in

Johnson v. Georgia Highway Express, 488

F2d 714 (Sth Cir. 1974) (hereinafter

"Johnson").

The Johnson "checklist" approach was

initially relied upon by the Sixth Circuit

in Monroe v. County Board of Education,

505 F2d 109 (6th Cir. 1974), but abandoned

in Northcross:

"We have learned through

experience, however, that

merely providing a check

list of factors to consider

does not lead to consistent

results, or, in many cases,

reasonable fees. Many of

the factors are

overlapping, and there is

no guidance as_ to the

relative importance of each

factor, or, indeed, how

they are to be applied in a

given case." 611 F.2d at

642.

Similar criticism had been directed

at Johnson by courts and commentators,

e.g., Copeland v. Marshall, 641 F2d 880,

890 (D.C. Cir. 1980) (en banc); Bishop v.

Furtado, 635 F2d 915, 920 (lst Cir. 1980);

Berger, Court Awarded Attorneys' Fees:

What is “Reasonable"?, 126 U. Pa. L.

Rev. 281, 285-287, 292 (1977).

In consequence, "those circuits that

established their fee-setting procedures

after Lindy and Johnson, and had an

opportunity to study both systems, have

chosen Lindy as the better rule." Court

Awarded Attorney Fees Report of the Third

Circuit Task Force, October 8, 1985, 771

F.2d (No. 2) 14.

Indeed, even the Fifth Circuit moved

to the lodestar approach in Graves v.

Barnes, 700 F.2d 220 (5th Cir. 1983).

There may be, however, less

differences between the Lindy and Johnson

approaches than meets the eye, because

many of the Johnson factors are subsumed

and considered in the determination of the

appropriate number of hours and the hourly

rate.

Thus, the Sixth Circuit in Northcross

stated:

"We conclude that an

analytical approach,

grounded in the number of

hours expended on the case,

will take into account all

the relevant factors, and

will lead to a reasonable

result. The number of

hours of work will

automatically reflect the

'time and labor involved,'

'the novelty and difficulty

of the question, ' and

‘preclusion of other

employment. ' The attor-

neys normal hourly billing

rate will refiect ‘the

skill requisite to perform

the legal service

properly,' ‘the customary

fee,' and the ‘experience,

reputation and ability of

the attorney.' Adjustments

upwards may be made to

reflect the contingency of

the fee, unusual time

limitations and the

'undesirability' of the

case. Thus, applying the

approach used in this

decision will result in an

award reflecting those

considerations tradition-

ally looked to in making

fee awards, but will also

provide a logical,

analytical framework which

should largely eliminate

arbitrary awards based

solely on a judge's pre-

dispositions or instincts."

611 F.2d at 642-643.

Specifically, the Court noted that

the number of hours submitted may be

reviewed and reduced, e.g., "to>

duplication, padding or frivolous claims"

or for other reasons provided the hours

are identified and the reason for their

elimination articulated. 611 F.2d at 636-

637.

Further, the determination of the

fair market value of services rendered may

take into account a differentiation

between trial and office rates and whether

the services could have been performed by

less expensive personnel. 611 F.2a at

637-638.

The Sixth Circuit is not alone in

recognizing that many of the Johnson

factors are subsumed within the initial

calculation of hours reasonably expended

at a fair market rate. This Court in

Hensley, 461 U.S. at 434 n.9, pointed out

that it is "usual" that such factors are

so subsumed. Cf. Riddell v. National

Democratic Party, 712 F.2d 165 (5th Cir.

1983) ("lodestar" need not be adjusted

when adjustment factors considered in

initial lodestar computation). See also,

Third Circuit Task Force Report, supra, at

13-14.

The Northcross analysis is fully

consistent with this Court's decisions in

‘Hensley and Blum v. Stenson (hereinafter

"Blum") 79 L.Ed.2a 891 2a (1984) which

adopted the lodestar approach:

"The initial estimate of a

reasonable attorney's fee

is properly calculated by

multiplying the number of

hours reasonably expended

on the litigation times a

reasonable — hourly

rate. .. . Adjustments to

that fee then may be made

as necessary in the

particular case." Blum 79

L. Ed. 2a at 895-896.

Accord: Fensley, 461 U.S.

at 433; See Third Circuit

Task Force Report at 14-15.

Although cognizant of the difference

between calculating a fee under a_e fee

shifting statute, where Congressional

intent is controlling, and under the

judicially created "common benefit"

exception, where equitable considerations

govern, the Northcross "lodestar"

formulation followed by the District Court

waS an appropriate method of determining

the amount of the award in the instant

proceeding. See, e.g., Philadelphia

Division, Pennyslvania Telephone Guild v.

Pennsylvania Telephone Guild, 573 F.Supp.

314 (E.D.Pa. 1983); Pawlak v. Greenawalt,

713 F.2d 972 (3rd Cir. 1983).

Petitioners Are Barred From

Contesting The Calculation Of

The Amount Of Attorney Fees

Awarded By The District Court

And Affirmed By The Sixth

Circuit Because They Agreed To

Waive Evidentiary Hearing,

Consented To The District Court

Making A Determination Solely On

The Basis Of Affidavits Of Hours

Expended And Office Rates

Charged By Respondent's Counsel

And of Hourly Charges Of

Comparable Attorneys In The

Community For Like Services, And

Failed To Identify Any Bases For

Reducing The Hours So Submitted

Or, The Hourly Rates Found

Appropriate By The District

Court.

The

District

fees was

made for

Petitioners contend that the

Court's calculation of attorney

flawed because no adjustment was

"any duplicative time between the

[Respondent's] attorneys’ pre-litigation

and non-litigation time," "clear

duplication between the attorneys in

office time, as well as trial preparation

and trial appearances," for differentials

in rates "for office time as opposed to

litigation time" and for "failure tu

submit contemporaneously kept and prepared

time records." (Petition, pp. 10, 16).

Respondent concedes that Petitioners

are entitled to call for an evidentiary

hearing at which all of these matters may

be inquired into, documents examined and

counsel themselves subjected to cross-

examination on their submissions.

However, at conference with the

District Court on October 2, 1980 the

parties agreed to waive evidentiary

hearing on the issue of counsel fees and

consented to the Court determining the

amount based upon Respondent's counsel's

affidavits, (itemizing the services, dates

and hours spent onthe proceeding and

appending pertinent biographical

information and the power of attorney-fee

agreement,) and the affidavits of all

counsel setting forth hourly rates charged

by counsel and other comparable attorneys

in the community. (A-414-415). Because

the counsel fee determination was to be

made in this fashion, no time records or

other evidence was offered with respect to

the number of hours of service expended in

the proceeding.

Surely Petitioners cannot consent to

the Court's making a determination on the

counsel fee issue without an evidentiary

hearing and, in the same breath, claim

that no such ajudication was properly made

because of a lack of "back-up

documentation" which can only be

presented, examined and explained at an

evidentiary hearing.

As this Court declared in Blum:

"We decline to consider

petitioner's further

argument that the hours

charged by respondents'!

counsel were unreasonable.

As noted above, petitioner

failed to submit to the

District Court any evidence

challenging the accuracy

and reasonableness of the

hours charged, see Hensley,

Supra, at £76 L. Ed. 2d

40, 103 S.Ct. 1933, on the

facts asserted in the

affidavits submitted by

respondents! counsel. It

therefore waived its right

to an evidentiary hearing

in the District Court. See

City of Detroit v. Grinnell

Corp.,495 F.2d 448, 472-73

(2d Cir. 1974) (where facts

are disputed, an

evidentiary hearing is

required before a district

court determines a proper

attorney's fee award). In

view of the trial strategy

it choose, petitioner

waived its right to

challenge in this Court,

the District Court's

determination that the

number of hours billed were

reasonable for cases of

Similar complexity." 79

L. Ed. at 898 n.5.

The instant proceeding is now in its

twelfth year. The voluminous aocket

sheets and time summaries submitted by

Respondent's counsel reflect, among other

activities, preparation of some 28 motions

and 24 memoranda, conduct of 23 days of

trial and the submission of requests for

several hundred findings of fact and

conclusions of law. Although the actual

number of hours devoted to the cause was

much higher, lead counsel sought

compensation for 1,244.5 hours and co-

counsel for 482 hours.

The Petitioners failed to identify

any hours which were unjustified or

duplicative. Nevertheless, the District

Court made an independent review and

concluded that counsel "neither claimed

unjustified hours nor duplicated each

other's services." (A-419). Each counsel

submitted a "standard billing rate,"

requesting no premium for time spent in

litigation. (A-423).

Reviewing affidavits of rates 0!

the District Court found that lead

counsel's rates "were in accord with the

community standards for an attorney of his

experience," except for the years 1975 ana

1976, for which period the rates submitted

were reduced from $85.00 to 5$80.00. (A-

424) The rates for co-counsel were found

to be “reasonable for an attorney of h

experience during the period of time he

was involved in this case." (A-424)

Cs The Courts Below Properly Found

That The Results Obtained By

Respondent In Vindicating The

"Free Speech" And "Assembly"

Rights Of Union Members, In

Substantially Democratizing

Union Procedures And In

Restructuring The Union's

Exclusive Hiring Hall System So

As To Assure Its Integrity

Conferred A Substantial Benefit

Upon Union Members Justifying

The Counsel Fees Awarded And

That No Part of Their

Compensation Was Attributable To

Unsuccessful Unrelated Claims.

The District Court awarded

Respondent's lead counsel $100,232.50 and

his co-counsel $33,107.5C.

Petitioners do not assert that the

amounts are excessive in light of the

Union's ability to pay. (Indeed, as the

District Court noted, Local 18 is a state-

wide union labor organization with some

16,000 members (A-10), and at the time of

the proceeding reported income of

$3 million, a payroll of $1.6 million and

assets of $6 million.)

Rather, the thrust of their argument

seems to be that the Sixth Circuit did not

consider the “extent of success" or

"results obtained," (Petition, -p. 20),

that there was "disproportionality of the

attorney fee award as compared to

plaintiff's recovery," (Petition, p. 8-9

n.3), and that the fee should have been

reduced for hours expended on Respondent's

unsuccessful claims (Petition, p. 18-19).

The relief granted Respondent Murphy

included reinstatement to Union membership

and expungement of the record of his

suspension, injunctive relief assuring,

inter alia, fair opportunity to work at

the trade, compensatory damages in the

amount of $10,000 and lost earnings in an

amount still to be determined, however, on

a "present value" computation, submitted

by Respondent pursuant to leave granted in

the District Court's Post-Judgment

Memorandum, Opinion and Order of October

14, 1984 (A-383-385), supports an

allowance of $118,042 as of December 31,

1983. Furthermore, Murphy was also

initially awarded $200,000 in punitive

damages which was later remitted in order

to achieve democratic reforms.

But, unlike Section 1988 cases such

as City of Riverside v. Rivera, 763 F.2d

1500 (9th Cir. 1985) cert. granted, No.

85-224, the reasonableness of the attorney

fees awarded is not to be judged by the

personal relief Murphy achieved. It is

rather to be viewed in light of the

substantiality of the benefit conferred

upon all the members of the Union.

Respondent's success in this’ litigation

corrected and prevented future abuse

prejudicial to the rights and interests of

the members. Hall v. Cole, 412 U.S. 1, 5

Re7; (1973) (hereinafter "Hall") ;

Mills v. Electric Auto-Lite Co., 396 U.S.

375, 396 (1970).

In Hall this Court found the

reinstatement of union membership of a

dissident member expelled for introducing

resolutions critical of the admini-

stration's undemocratic actions and

policies justified the award of attorney

fees:

". . « there can be no

doubt that, by vindicating

his own right of free

speech guaranteed by

Section 101(a)(2) of Title

I of the LMRDA, [plaintiff]

necessarily rendered a

substantial service to his

union as an institution and

to all of its members.

When a union member is

disciplined for the

exercise of any of the

rights protected by Title

7 the rights of all

members of the union are

threatened. And, by

vindicating his own right,

the successful litigant

dispels the '‘'chill' cast

upon the rights of others.

Indeed, to the extent that

such lawsuits contribute to

the preservation of union

democracy, they frequently

prove beneficial ‘not only

in the immediate impact of

the results achieved but in

their implications for the

future conduct of the

union's affairs.' 412, at

8, quoting Yablonski v.

United Mine Workers of

America, 466 F.2d 424, 431

(1972).

So in the present proceding, Murphy,

by vindicating his own Section 411 "free

speech," "assembly" and "disciplinary due

process" rights, advanced the interest of

every Union member. (A-406)

But, he did much more.

He paved the way for recovery of

union funds spent by officers in breach of

their fiduciary duty. (A-248)

In exchange for vacation of his

$20,000 punitive damage award against

Defendant John Frank, he rid the Union of

a dictatorial and oppressive officer and

business agent. (A-382-383)

In exchange for vacation of ‘4

$150,000 punitive damage award against the

Union, he introduced a series of

democratic reforms in the governance and

administrative processes of the Union.

(A-2-A3, A-461-A462, A-464)

The period during which election

lists may be examined was enlarged. For

the first tine, candidates for union

office are entitled to speak to the

membership on behalf of their candidacies.

While the court did not see fit to require

the Union to abandon its policy of using

the Buckeye Engineer as a forum for self-

laudation and criticism of dissidents and

permit access to this house organ for

opposing viewpoints, it did require the

publication to be used as a vehicle for

educating the members of the Local as to

their rights under the LMRDA on a_ regular

semi-annual basis.

Perhaps most important of all, Murphy

put an end to use of the Union's exclusiv>

hiring hall system as an instrument of

political oppression. Dispatch telephones

are now equipped with recording devices to

provide a verifiable means of ascertaining

the sequence in which job referral calls

are made. Job orders and dispatches made

pursuant thereto are posted weekly and

registration cards and job orders are date

and time-stamped. "Anti-steering" and

"anti-discrimination" provisions are in

force. (A-429-A457 ,A-461-A-462).

This relief, as the Sixth Circuit

observed, "signified a substantial

victory." (A-490)

Further, as the Sixth Circuit pointed

out, the claims upon which Murphy did not

prevail "were closely interrelated and

arose from one common core of facts." (A-

489-490) Indeed, all the unsuccessful

claims were added to his complaint by

amendment either after the presentation of

his case-in-chief or at the conclusion of

trial to conform to the evidence.

F.R.C.P. 15(b).

Even under the "prevailing party"

fee-shifting statutes, where the focus is

upon the successful claims rather than the

benefit conferred, this Court expressly

rejected the "mathematical approach

comparing the total number of issues in

the case with those actually prevailed

upon," as here apparently urged by the

Petitioners. See, Hensley, 103 S.Ct. at

194i n. il.

Downward fee adjustments may be

appropriate only where a plaintiff failed

"to prevail on claims that were unrelated

to the claims on which he_ succeeded"

because "a plaintiff may present in one

lawsuit distinctly different claims for

relief that are based facts and legal

theories" so that "counsel's work on one

claim will be unrelated to his work on

another claim" with the result that "work

on an unsuccessful claim cannot be deemed

to have been ‘expended in pursuit of the

ultimate result achieveda'." Hensley, 103

s.ct. at 1940.

The narrowness of the unsuccessful

"unrelated claim" exclusion from Section

1988 counsel fee awards is highlighted by

Justice Powell's further comment:

"Tt may well be that cases

involving such unrelated

claims are unlikely to

arise with great frequency.

Many civil rights cases

will present only a single

claim. In other cases the

plaintiff's claims for

relief will involve a

common core of facts or

will be based on related

legal theories. Much of

counsel's time will be

devoted generally to the

litigation as a whole,

making it a@aifficult to

divide the hours expended

on a Claim-by-claim basis.

Such a lawsuit cannot be

viewed as a series of

discrete claims. Instead

the district court should

focus on the significance

of the overall relief

obtained by the plaintiff

in relation to the hours

reasonably expended on the

litigation.

Where a plaintiff has

obtained excellent results,

his attorney should recover

a fully compensatory fee.

Normally this will

encompass all hours

reasonably expended on the

litigation, and indeed in

some cases of exceptional

success an enhanced award

may be justified. In these

circumstances the fee award

should not be reduced

simply because the

plaintiff failed to prevail

on every contention raised

in the lawsuit. See

Davis v. County of Los

Angeles, 8 E.P.D.

Paragraph 9444, at 5049 (CD

Cal. 1974). Litigants in

good faith may raise

alternative legal grounds

for a desired outcome, and

the court's rejection of or

failure to reach certain

grounds is not a sufficient

reason for reducing a_ fee.

The result is what

matters." Hensley, 103

S.Ct. at 1940.

In the present case, remand of the

attorney fee issue to the District Court

in order to consider the relationship

between the fee award and the result

obtained is not justified.

It is clear that the relief requested

by Plaintiff and denied by the District

Court, including additional political

campaign reforms, were all related to the

claims upon which he prevailed, grew out

of a common nucleus of operative facts and

were based upon related legal theories.

They were therefore not "distinct in all

respects from his successful claims"

within the meaning of Hensley.

Ii. THE FACT THAT RESPONDENT HAD NO FEE

OBLIGATION TO HIS COUNSEL WHOSE

COMPENSATION WAS CONTINGENT UPON

COURT AWARDED ATTORNEY FEES DOES NOT

AFFECT RESPONDENT'S ENTITLEMENT TO

COUNSETI: FEES AND REQUIRE THAT

RESPONDENT AND HIS COUNSEL BEAR THE

EXPENSE OF LITIGATION WHICH HAS

CONFERRED A SIGNIFICANT COMMON

BENEFIT UPON THE MEMBERS OF THE

UNION.

Respondent's counsel undertook

representation in this cause under a power

of attorney and contingent fee agreement

which provided that Respondent would not

be "responsible for attorneys fees or any

other. - «+ expenses" and that all

"expenses will be defrayed through

subventions from the American Civil

Liberties Union and the Legal Aida Society

of Clevelana."+

1. The withdrawal of financial support for

this litigation by the Legal Aid Society of Cleveland

and the American Civil Liberties Union because of

budgetary contraints resulted in the incurring of

substantial expenses which Respondent has either paid

or for which he is obliged to reimburse his counsel.

Counsel were “empowered and directed

to seek counsel fees and reimbursements

for . . « expenses" and were "entttled to

retain whatever counsel fees a court

may direct in compensation for their

services rendered in my behalf."

Although recognizing that the absence

of a fee obligation does not affect a

client's entitlement to an award under

fee-shifting statutes, Blum, 79 L. Ed. at

898 (Legal Aid Society of New York

entitled to fee based on "“prevailiny

market rate"), Petitioners now argue that

such an obligation is essential to an

entitlement under the "common. benefit"

exception, else there can be no "unjust

enrichment" of the benefitted class.

This issue was neither presented to

nor passed upon by the Court of Appeals.

It is patently without merit.

The enrichment is "unjust" regardless

whether it comes at the expense of a party

or his attorney. The attorney does no:

merely stand in the shoes of the client,

nor will his claim necessarily be measured

by the contractual obligation of the

client.

"An attorney may agree to

take a case on a basis that

will not fully compensate

the time and effort to be

expended because of the

expectation that the

lawsuit will create or

preserve a fund for the

benefit of a broader class.

To the extent the contract

with the client affords the

attorney less than the

market value of his or her

time and effort, the

attorney has incurred a

loss in the course of

conferring benefits upon

others. That loss is the

measure of the unjust

enrichment to the non-

client beneficiaries. .

The common benefit theory,

for these purposes, is

merely a corollary of the

common fund principle;

but is grounded upon

the same principle of

unjust enrichment."

Berger, Court Awarded

Attorneys' Fees: What is

"Reasonable"? 126 U. of Pa.

L. R. 281, 299-300 (1977)

(footnotes omitted).

In LMRDA proceedings there is another

powerful reason for awarding attorney

fees, even in absence of any fee

obligation of the plaintiff to his

counsel:

"Not to award counsel fees

in cases such as this would

pe tantamount to repealing

the Act itself by

frustrating its basic

purpose. It is difficult

for individual members of

labor unions to stand up

ana fight those who are in

charge. The latter have

the treasury of the union

at their command and the

paid union counsel at their

beck and call while the

member is on his own.

. — An individual

union member could not

carry such a heavy

financial burden. Without

counsel fees the grant of

federal jurisdiction is but

a gesture for few union

members could avail

themselves of it." Hall,

412 U.S. at 12, quoting

462 F2da at 780-781.

Counsel for plaintiff in Hall,

Mr. Justice Clark pointed out, had

undertaken the case "largely on a pro bono

publico basis" so that "Cole and his

counsel bore the cost of litigation

themselves." Cole v. Hall, 462 F2d Pil,

778, 780 (2nd Cir. 1972).

As Judge Shapiro aptly explained in

Philadelphia Division, Pennsylvania

Telephone Guild v. Pennsylvania Telephone

Guild, 573 F.Supp. 314 (E.D. Pa. 1983):

"Plaintiffs are not

precluded from recovering a

fee award because they will

not otherwise be liable to

their attorneys or because

. =e « Cae outside

organization] has already

paid the plaintiffs'

counsel the amount billed

to them. Defendants

misconceive the common

benefit theory on which

plaintiffs are entitled to

an award of fees. "a aa

[flee shifting in this

action to vindicate

statutory rights bestows a

common benefit and it is

equitable for the fees and

expenses toc be paid from

the common treasury and

shared by all of . .. the

union members who gained

protection for their right

to choose or reject

alternative constitutional

proposals in a fair and

democratic manner with

provisions for fair

dissemination of views."