Opposition Brief — Sprenger, Olson & Shutes, P. A. v. Burlington Northern Railroad

—"

Supreme Court, U.S.

et he D

JUL 21 198!

ie]

JOSEPH F. CPANIOL, JR.

CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1987

SPRENGER, OLSON & SHUTES P.A., and

DAVIS, MINER, BARNHILL & GALLAND,

Petitioners,

v.

BURLINGTON NORTHERN RAILROAD COMPANY,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Of Counsel: CHRISTOPHER T. LUTZ *

EDMUND W. BURKE STEPTOE & JOHNSON

BURLINGTON NORTHERN 1330 Connecticut Ave., N.W.

RAILROAD COMPANY Washington, D.C. 20036

3800 Continental Plaza (202) 429-3000

777 Main Street * Counsel of Record for

Fort Worth, Texas 76102 Respondent Burlington

Northern Railroad Company

Dated: July 21, 1987

(TIER RE PE A TT A LS A SL STS TE a a EET RSNA, TEL RCE EO HSS

WILSON - Epes Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Did the court of appeals err in affirming the dis-

trict court’s conclusion that petitioners failed to prove

this was one of those “selected” cases in which an addi-

tion to the $2.18 million lodestar fees award was war-

ranted?

2. Did the court of appeals err in affirming the dis-

trict court’s conclusion that petitioners had not met their

burden of showing that the risk of contingency justified

an enhanced fees award?

3. Did the lower courts err in not accepting petition-

ers’ argument that risk enhancement is required for fees

awards in all successful contingent representations?

4. Did the court of appeals err in affirming the dis-

trict court’s finding that the settlement in this case did

not constitute “exceptional” relief and thus did not jus-

tify fees enhancement?

(i)

ii

LIST OF CORPORATE AFFILIATES

AND SUBSIDIARIES

Burlington Northern Railroad Company:

The Belt Railway Company of Chicago

Camas Prairie Railroad Company

Davenport, Rock Island and North Western

Railway Company

The Denver Union Terminal Railway Company

Galveston Terminal Railway Company

Houston Belt & Terminal Railway Company

Iowa Transfer Railway Company

Kansas City Terminal Railway Company

Keokuk Union Depot Company

The Lake Superior Terminal and Transfer

Railway Company

Longview Switching Company

The Minnesota Transfer Railroad Company

Paducah & Illinois Railway Company

Portland Terminal Railroad Company

The Saint Paul Union Depot Company

Terminal Railroad Association of St. Louis

Trailer Train Company

The Wichita Union Terminal Railway Company

Winona Bridge Railway Company

The El Paso Company:

EF] Paso Natural Gas Company:

El Paso Development Company:

Lake Country Windjammer, Inc.:

Adams Canyon Ranch

Santa Paula Farms

E] Paso Hydrocarbons Company:

Minera San Pedro Corralitos, S.A.

iii

Meridian Petroleum Holding, Inc:

Meridian Oil, Inc. (formerly Milestone

Petroleum, Inc.) :

Butte Pipe Line Company

Portal Pipe Line Company

New Mexico and Arizona Land Company:

NZ Development Corp.

NZ Properties, Inc.

TABLE OF CONTENTS

Page

Ep ye 8) tg 4°. 1. gy 5 | ae i

LIST OF CORPORATE AFFILIATES AND SUB-

I ctirnsrncetestaicnininisaibacss Ssssnslca Eda llcoeiegaentibanatiabiatabiait ii

ee Te SE viktteeeciaritiintnidiniacichedtoaslein vi

Be gee yy | 5 gece een meer aes ame na nn 1

REASONS FOR DENYING THE WRIT ....................... 6

Ge icin pibicinsiittinitirsaiieia uni scikeiiltsplanniicialpnitagcptamcadsabbitlbetcinnaions 7

I. Petitioners Mischaracterize The Record And

What The Lower Courts Did ................................ 7

II. Denial Of The Writ Is Consistent With This

Court’s Recent Delaware Valley Decision And

With Its Prior Fees Opinions ........0...00000000000000.... 9

| III. The Seventh Circuit’s Refusal To Disturb A

Finding That The Relief Here Was Not “Ex-

ceptional” Does Not Justify Review By This

I wei ssisiesssnnnisancntninenncahiceinsicacbeinestbaisnaleet iad 13

;

| CTI os eisiericicessincccmstasceeceiouaecnaencenas 14

| (v)

vi

TABLE OF AUTHORITIES

CASES: Page

Blum v. Stenson, 465 U.S. 886 (1984) .................... 13

EEOC v. Burlington Northern, Inc., 618 F. Supp.

1046 (ICD. TEL. 19GB) -nunncccccecceccnccecsccccccscsnsaseonsnses passim

Hazelwood School District v. United States, 433

it Oy, 5 none ee ae 8

In re Burlington Northern, Inc. Employment Prac-

tices Litigation, 810 F.2d 601 (7th Cir. 1986) ....passim

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 106 S.Ct. 3088 (1986) .................. 13

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, No. 85-5 (U.S. June 26, 1987) ....6, 9, 10,

11, 12, 13

RULES:

ee Fe Fe OP BED —..cccncdccccudeccvedtatmmenbenabesicaiatbisissiint 7

SE a

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1987

No. 86-1880

SPRENGER, OLSON & SHUTES P.A., and

DAVIS, MINER, BARNHILL & GALLAND,

¥ Petitioners,

BURLINGTON NORTHERN RAILROAD COMPANY,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Respondent Burlington Northern Railroad Company

(“BN”) asks this Court to deny the petition for a writ

of certiorari seeking review of the judgment of the

United States Court of Appeals for the Seventh Circuit.

COUNTERSTATEMENT

The decision below upholds the district court’s award

of $2.18 million in attorneys fees to petitioners for their

work on a Title VII class action. That award repre-

sented petitioners’ “lodestar” fees, the district court hav-

ing found after a three-day hearing that the evidence

did not show that “exceptional” success had been achieved,

and did not demonstrate that the risk of the representa-

tion justified fees enhancement.

2

The Seventh Circuit’s opinion chiefly reviews the dis-

trict court’s assessment of the evidence on risk and relief.

Petitioners, however, provide an unbalanced description

of that evidence and of what the lower courts did. A

counterstatement follows.

A. The Merits Litigation

The merits litigation in this case began in January

1978 with the filing of McBride et al. v. BN (N.D. Ill.).

It settled in November 1983. Jn re Burlington Northern,

Inc. Employment Practices Litigation,’ 810 F.2d 601, 603

(7th Cir. 1986), reprinted in Pet. App. Al, A2. Peti-

tioners, along with lawyers from the EEOC, were lead

counsel for a class of black plaintiffs who charged that

BN and its labor unions had violated Title VII. EEOC

v. Burlington Northern, Inc., 618 F. Supp. 1046, 1049

(N.D. Ill. 1985), reprinted in Pet. App. C1, C6.

In late 1978, the McBride plaintiffs moved for class

certification; at about the same time, the EEOC moved

to intervene as a plaintiff. Within months, the district

court certified a broad “across-the-board” class and per-

mitted the Commission to intervene. 618 F. Supp. at

1049, 1058; Pet. App. at C5-6; C23.

By early 1979, BN’s employment practices had become

a popular target. Eleven different lawyers or firms, rep-

resenting fourteen different black plaintiffs, ultimately

filed private Title VII suits against the company. This

forced BN to seek multi-district consolidation, which was

granted in April 1979. Various pending suits were con-

solidated with McBride in the Northern District of IIli-

nois. 618 F. Supp. at 1050, 1062; Pet. App. at C5-6; C30.

1 The petition for writ of certiorari will be cited as “Pet. ——.”

The petitioners’ appendix will be cited as “Pet. App. ——.” Plain-

tiffs’ fees hearing exhibits are cited as “PX ”, defendant’s as

“DX ——.” The transcript of the fees hearing is cited as “Tr.

——.” Other items are cited with a title, date, and page number.

3

Along with petitioners, the EEOC played a significant

role throughout the merits litigation. In fact, the Com-

mission had been investigating BN’s employment prac-

tices three and one half years before McBride was filed.

618 F. Supp. at 1048-49; Pet. App. at C4. Over the five

year course of McBride, thirteen attorneys and nine legal

assistants from the Commission participated,? and the

Commission shouldered about $675,000 in expenses. 618

F. Supp. at 1051; Pet. App. at C10. It was the EEOC

that referred William E. McBride and his colleagues as

clients to Davis, Miner, Barnhill & Galland, one of the

petitioners here. (Tr. 301)

Consistent with the case scope plaintiffs sought, dis-

covery was extensive. Most of it was conducted by the

plaintiffs. Petitioners have said that the results of this

discovery were “spectacularly useful.” * They have said

they developed “overwhelming proof of plaintiffs’ allega-

tions,” including ‘damaging admissions,” “admissions of

intentional discrimination,” “excellent results” in deposi-

tions, and company officials turning “ ‘states evidence’ ”’.*

B. Merits Settlement

According to one of petitioners’ experts, this was a

“classic case . . . in which the parties both benefit from

getting together and settling”; it offered, he said, “per-

fect questions for settlement.” (Michaelson Dep. 52-56).

Plaintiffs began the settlement process four years into

the suit, when they made their first offer, demanding $60

million and wide-ranging injunctive relief. (Tr. 275-7)

This led to extended negotiations beginning in August

1988. (Tr. 224-5) By October 1983, a week or so before

* EEOC Response to BN’s Interrogatories on Fees and Expenses,

Question 3 (July 3, 1984).

3’ Memorandum in Support of Lead Counsels’ Application for

Fees and Costs at 10 (May 25, 1984).

4 Jd. at 10, 12, 15, 17; Tr. 265-69.

4

trial, the parties had agreed on a way to resolve a sub-

stantial portion of the case. (Tr. 226-7) In early Novem-

ber 1983, the day before trial was to begin, the parties

agreed on a Consent Decree settling the entire case (Tr.

227-25).

The Decree, which received final approval in April

1984, settled all the cases consolidated in MDL 374. In

return for a release of all class members’ claims, BN

agreed to pay $10 million—between $500 and $1,000 per

class member.’ The decree also contains formulas for

what have proven to be relatively low hiring fill rates.

It includes other injunctive relief which has changed

BN’s employment practices very little.°

C. The Fees Litigation

The Decree provided that BN would pay reasonable

fees and costs for the litigation it resolved. Therefore, in

May 1984, various counsel and the EEOC filed thirteen

petitions for such awards. All were settled except peti-

tioners’. 618 F. Supp. at 1051; Pet. App. at C10. Peti-

tioners asked for $6.8 million in fees and $1 million

in expenses. They sought a 3.5 multiplier and an ef-

fective average hourly rate for lawyers of over $540.’

BN contended this fees claim was too high, because it was

based on excessive lodestar hourly rates and an unjusti-

fied multiplier. The company did not, however, contest

the hours or expenses claimed by petitioners.

5 Lead counsel estimated that there were between 10,000 and

20,000 class members. (Tr. 281-82). Actual distributions averaged

about $1,500, since only about 7,000 to 8,000 class members who

filed claims were eligible for money. Over half the class got noth-

ing. 618 F. Supp. at 1058; Pet. App. at C23; Tr. 156-58; 281-82.

6 DX-F; Tr. 388-89; Decree, 7-10; Implementing Agreement No.

2 (March 19, 1984).

7 Memorandum in Support of Lead Counsels’ Application for

Fees and Costs at 43-46 (May 25, 1984).

5

After six munths of discovery, the district court held

a three day fees hearing in November 1984. BN and peti-

tioners presented lay and expert witnesses and exhibits.

Petitioners continued to pursue a very large award,

though they did reduce the multiplier they sought from

3.5 to 2.5. 618 F. Supp. at 1053; Pet. App. at C12-13.

On September 20, 1985, the district court issued its

opinion, awarding petitioners $2.18 million in fees. De-

spite saying that “there is some merit in Burlington’s

contention that the hourly rates sought by lead counsel

are too high” (618 F. Supp. at 1054; Pet. App. at C16),

the court awarded the rates sought, which mostly ranged

between $160 and $180 per hour. They were, the court

said, “the top hourly rate [petitioners] . . . have ever

been paid by clients or awarded by a court ...,” and

were “the top they can request.” 618 F. Supp. at 1061;

Pet. App. at C29.

The district court denied petitioners’ request for a

multiplier. After recounting the parties’ positions on the

relief achieved (618 F. Supp. at 1056-57; Pet. App. at

C19-20) it concluded that, for a variety of reasons, the

result embodied in the Decree was not so “exceptional’’

as to justify fees enhancement. 618 F. Supp. at 1058-60,

1064; Pet. App. at C20-28, C35.

The district court also concluded that “lead counsel

have not met the required burden” to prove that the risk

of contingency made this a case warranting an addition

to lodestar fees. 618 F. Supp. at 1062; Pet. App. at C31.

In doing this, the district court considered, but was not

persuaded by, evidence that lawyers would abandon plain-

tiffs’ Title VII practice if enhancement were not added

to a fees award already made large by high hourly rates.

618 F. Supp. at 1061-62. Pet. App. at C29-31.

The court of appeals affirmed the district court’s denial

of a multiplier, holding that the trial judge had properly

considered evidence bearing on both relief and risk. 810

6

F.2d at 604-05; Pet. App. at A5-6. On each point, the

Seventh Circuit was unwilling to find an abuse of discre-

tion in the district court’s conclusion that the evidence

did not warrant enhancement. 810 F.2d at 607, 608;

Pet. App. at Al0-11, A-12-13. Petitioners sought en banc

rehearing, but their request was denied in February 1987.

810 F.2d at 611-12 reprinted in Pet. App. B1-3.

REASONS FOR DENYING THE WRIT

Petitioners’ claim that this case involves important legal

questions is based on an inaccurate account of the lower

courts’ decisions and on a misleadingly selective descrip-

tion of the evidence. In fact, by granting and affirming a

$2.18 million fees award, the lower courts acted in a

manner consistent with the views expressed by a major-

ity of the members ofthis-Court in Pennsylvania v. Dela-

ware Valley Citizens’ Council for Clean Air, No. 85-5

(U.S., June 26, 1987) (slip opinion) (“Delaware Valley

II’), and with this Court’s attorneys fees opinions before

Delaware Valley Il.

The district court received from both sides a mountain

of evidence on the risks of contingent representation—in

this case and generally—and on the results. It considered

arguments covering all of the issues addressed in Dela-

ware Valley II. Based on all this, the district court con-

cluded, in light of the high hourly rates it awarded, that

lodestar fees constituted a reasonable award without

additional enhancement. The Seventh Circuit was unwill-

ing to disturb the trial court’s conclusions, finding them

supported by evidence in the record. Petitioners have no

substantial legal basis for their self-professed goal of

“making a large fee larger.”* Their factual disagree-

ments with the lower courts do not warrant review by

this Court.

§ Lead Counsels’ Brief to the Seventh Circuit at 18 (January 21,

1986).

lly Ac ttl,

-

i aa

7

ARGUMENT

I. PETITIONERS MISCHARACTERIZE THE RECORD

AND WHAT THE LOWER COURTS DID

Since there must be “special and important reasons”

for this Court to grant a writ of certiorari,’ petitioners

work hard to characterize the decisions below as arbi-

trary, misguided, and wrong. In doing so, however, they

describe decisions the lower courts never made.

A few examples of petitioners’ inaccuracy will suffice.

Petitioners suggest, for instance, that the court of ap-

peals made district court rulings on risk enhancement

“unreviewable” (Pet. Br. at i, 11); in fact, the Seventh

Circuit did explicitly review the district court’s conclu-

sions on that point. 810 F.2d at 605, 608; Pet. App. at

A6-7, 11-13. Similarly, petitioners say the lower court

decisions in this case make risk enhancement unavailable

(Pet. Br. at 7, 12); in fact, the district court indi-

cated (and the Seventh Circuit did not deny) that such

compensation was available in appropriate cases," and it

described with great approval a case in which a risk

® Sup. Ct. Rule 17.1.

10 Petitioners say “The district court ... refused to apply a

multiplier as a matter of law.” Pet. Br. at 12. They also say

“The court below [the Seventh Circuit] . . . appear[s] to hold that

there is never a right to receive a multiplier as compensation for

having undertaken risk.” Jd. at 7. As the next footnote shows,

those claims are just plain wrong.

11 The district court wrote that “Of course, the size of the settle-

ment is not the only feature of this case [bearing on enhancement].

Consistent with this notion lead counsel argue that the risk they

took [justifies a multiplier)” 618 F. Supp. at 1061; Pet. App. at

C28 (emphasis added). After a lengthy discussion, the court held

that “lead counsel have not met the required burden” on this point,

618 F. Supp. at 1062; Pet. App. at C31. The Seventh Circuit

affirmed this disposition under Fed. R. Civ. Pro. 52(a); it did

not question the district court’s legal position on risk enhancement

810 F.2d at 606-609; Pet. App. at A8-14.

8

bonus was given. 618 F. Supp. at 1062-64; Pet. App.

C31-35. In these and other ways, the petition misstates

what the lower courts held, in an effort to convert peti-

tioners’ failure to meet proof burdens into supposed legal

error.

Petitioners’ one-sided account of the record has the

same apparent purpose. By mentioning only evidence

favorable to their position, petitioners create the impres-

sion that the lower courts could have only acted on er-

roneous views of the law. In fact, BN made a sub-

stantial presentation on each of the factual issues in the

case. Thus, it is not true, as petitioners claim, that the

“uncontradicted” evidence showed they had less than an

even chance of prevailing (Pet. Br. at 3, 12-13); in fact,

BN presented substantial evidence and argument that

this case was not markedly risky.” It is likewise false

for petitioners to suggest that some of their attempts to

prove the relief here “truly exceptional” were “uncon-

traverted”. Pet. Br. at 14-16, n.6. Once again, BN made

an extensive presentation on why the relief achieved,

while fair and adequate, was not “exceptional” and was

mostly a product of the class’ size.”

12 A summary of BN’s evidence on that score covers eleven pages

of the company’s brief before the Seventh Circuit. See BN’s

Seventh Circuit Brief at 26-37 (February 20, 1986).

13 See BN’s Seventh Circuit Brief at 41-44. Petitioners’ account

of the evidence is flawed in other ways. For example, petitioners

repeat the canard that a 1981 shift in Title VII proof from “gsnap-

shot” to “flow” statistics created great risk (Pet. Br. at 9), even

though BN has repeatedly pointed out that this Court endorsed

both kinds of proof in 1977, well before McBride was filed. See

Hazelwood School District v. United States, 433 U.S. 299, 308 n.13,

309-13 (1977). In addition, it is wrong to say that Professor Frank

Easterbrook’s affidavit was “completely ignored” by both lower

courts or to imply that it was unrebutted (Pet. Br. at 8, 9-10).

Similarly, it is at least misleading for petitioners to retail their

experts’ “$57.5 million” appraisal cf part of the settlement (Pet.

Br. at 4) without mentioning that the district court found that esti-

a (a tO Ym I Cold (A PST Ae Pin hs il nNOS ey

9

This Court, of course, need not resolve such factual

battles. The lower courts have done that three times.

But to evaluate whether there are legal questions war-

ranting review, it is essential to know that BN presented

persuasive evidence on risk and relief, and that the lower

courts carefully considered both sides’ evidence. Peti-

tioners lost their enhancement arguments on the facts,

not because either lower court held such enhancement un-

available as a matter of law.

II. DENIAL OF THE WRIT IS CONSISTENT WITH

THIS COURT’S RECENT DELAWARE VALLEY

DECISION AND WITH ITS PRIOR FEES OPIN-

IONS

In Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, No. 85-5 (U.S., June 26, 1987), (“Dela-

ware Valley II’’), this Court extensively analyzed the

logical and legal implications of attorneys fees risk en-

hancement. Though the members of the Court took a

variety of paths in that case, the destination reached by

five Justices—that is, reversal of a risk multiplier award

—shows that the petition here should be denied.

In Delaware Valley II, the respondent attorneys sought

risk-based fee enhancement by offering proof that their

contingent representation had succeeded in the fact of

“new and novel issues,”"* defense intransigence, and

other “unusual difficulties.”"* This proof convinced the

district judge that a multiplier was justified, but it was

held insufficient by a majority of this Court. Five Jus-

tices concluded that, because the proof in Delaware Val-

mate to be of “very little’ value and implied that it verged on

“attorney fees puffery.” 618 F. Supp. at 1059-60; Pet. App. C26-

27. There are many other such examples in the petition.

14 Delaware Valley II, concurrence at 4, quoting the district

court’s opinion at 581 F. Supp. 1412, 1431 (E.D. Pa. 1984).

15 Delaware Valley I], concurrence at 4; see also id., plurality at

2-3.

10

ley II concerned matters unrelated to risk or adequately

compensated in a lodestar award,** the enhancement or-

dered should be reversed.

In this case, petitioners have offered much the same

evidence. They have claimed that BN “spare[d] no ex-

pense” in its defense and “sought to wear down plain-

tiffs and their counsel.” Pet. Br. at 10, 15. They have

argued that the case presented new and everchanging

issues. Id. at 8-9. And—like the respondents in Dela-

ware Valley II—they have made much of the fact that

they took what they say was a very risky case on a con-

tingent basis.

In Delaware Valley II, such arguments, even though

persuasive to the district court, did not justify risk en-

hancement—or even reconsideration of such enhance-

ment—for five members of this Court. In this case, peti-

tioners’ proof, when rebutted by BN, did not persuade

the district court. Having failed in their factual proof,

petitioners should not be more favorably treated than

were respondents in Delaware Valley II, who at least

succeeded at the trial level on the selfsame issues.

There is another way in which denial of the petition

is consistent with Delaware Valley II. Five Justices in

that case concluded that risk enhancement might be

called for “in selected cases.” Dissent at 22. Each of

the two opinions joined by those five Justices identifies

factors that might bear on whether risk enhancement

should be provided. Petitioners and BN offered evidence

on virtually all of those points, and still the district court

found enhancement unnecessary.

The concurrence in Delaware Valley II, for example,

agrees with the plurality that “no enhancement for risk

is appropriate unless the applicant can establish that

without an adjustment for risk the prevailing party

‘would have faced substantial difficulties in finding coun-

16 Jd. plurality at 18; concurrence at 4.

[Datel A i Bt at) a et tne NOE ett acne See atin rt

11

sel.’ ’’ Concurrence at 4. In this case, however, the evi-

dence showed no lack of lawyers willing to sue BN: Mr.

McBride and his colleagues were referred by the EEOC

to the Barnhill firm, which took their case (Tr. 301),

and, as the district court specifically found,

So many lawyers. . . were willing to represent com-

plaining Negro employees of the railroad and so

many suits were filed in different United States dis-

trict courts against it, that Burlington had to seek

relief from the Multi-District Litigation Panel. 618

F. Supp. at 1062; Pet. App. at C30.

The district court also received testimony from peti-

tioners’ experts*™ on what the Delaware II concurrence

called the way “the relevant market [would] compensate

[] for contingency.”"* But, after also considering BN’s

cross-examination, argument, and rebuttal, the district

court was unpersuaded by those experts’ views, and con-

cluded that rates mostly ranging between $160 and $180

per hour for every hour claimed constituted reasonable

compensation, even taking risk into account.” See 810

F.2d at 608; Pet. App. at A12-13.

Finally, the district court found that a multiplier like

that sought by lead counsel was not, as the Delaware

Valley II concurrence put it, “necessary to bring the fee

17Tr. 62-65, 62-83, 105-22 (Testimony of Thomas Sullivan) ;

Lead Counsel’s Proposed Findings of Fact and Conclusions of Law

at 36-39 (February 27, 1985).

18 Concurrence at 3. See also dissent at 21.

19 Notably, no opinion in Delaware Valley II prescribes lodestar

enhancement as the exclusive means of compensating risk. The

Justices who endorse the possibility of such compensation require

only that a district judge consider risk and fashion an award

“reasonable” in light of it. As the dissent in Delaware Valley II

seems to recognize, basic hourly rates—especially high ones—can

do that in whole or part. See dissent at 6, n.4. In that sense, what

the lower courts did here is entirely consistent with Delaware

Valley II.

12

within the range that would attract competent counsel”.

Concurrence at 3. In the words of the Seventh Circuit,

the district court was not persuaded by

the lead counsel’s evidence claiming that the risks of

Title VII litigation in general were such that multi-

pliers were necessary to attract competent counsel.

810 F.2d at 605; Pet. App. at A6.”

This Court, of course, is not a place to reargue the

evidence. Instead, the critical point is that petitioners

offered evidence on the risk related points held insuffi-

cient, and those viewed as significant, by a majority of

the Court in Delaware Valley II.7' BN offered extensive

rebutting evidence and argument. The district court con-

sidered it all, concluded that risk enhancement was not

called for, and found that a $2.18 million lodestar fees

award was “reasonable” compensation. 618 F. Supp. at

1068; Pet. App. at C44. The court of appeals affirmed

that finding because it was not an abuse of discretion.

810 F.2d at 608; Pet. App. at A12-13.

The fact of the matter is that petitioners got a full

opportunity to prove their contentions on risk, but were

unsuccessful. They were not encumbered by a narrow

20 The district court’s specific finding on this point is at 618

F. Supp. at 1061; Pet. App. at C30 (“[I]t is just not true that

unless lead counsel are given the 2.5 multiplier they request .. .

competent lawyers in Title VII cases will be discouraged from

undertaking representation of persons with such civil rights griev-

ances.” )

21The dissent in Delaware Valley II also suggests that some

factors may reduce the need for contingency enhancement. One

of those is the presence of other firms to which risk can be spread.

Dissent at 17-18. Here, there were two principal law firms and a

number of tagalong lawyers representing plaintiffs; more impor-

tant, the EEOC provided staff and financial assistance, and its very

presence reduced certain legal risks. See BN’s Seventh Circuit

Brief at 27 (February 20, 1986).

_T we] Sn Watashi

13

or erroneous view of the law.” There is nothing in this

basically factual dispute warranting review by this

Court.

III. THE SEVENTH CIRCUIT’S REFUSAL TO DIS-

TURB A FINDING THAT THE RELIEF HERE

WAS NOT “EXCEPTIONAL” DOES NOT JUSTIFY

REVIEW BY THIS COURT

Petitioners also briefly contend that there is an impor-

tant legal issue lurking in the Seventh Circuit’s affirm-

ance of the district court’s failure to be persuaded by

their arguments on the quantity of relief. Pet. Br. at

14-15. |

In fact, the court of appeals’ action on this point did

not establish new or aberrant law. The Seventh Circuit

was guided solely by the standard set out in Pennsyl-

vania v. Delaware Citizens’ Council for Clean Air, 106

S.Ct. 3088 (1986) and Blum v. Stenson, 465 U.S. 886

(1984): even excellent success does not justify enhance-

ment, but, in “rare” cases, the attainment of “excep-

tional” success may do so. See 810 F.2d at 606-08; Pet.

App. at A9-11. Under that legal standard alone, the court

of appeals affirmed. It added not a word to the law on

result based fees enhancement.

*2 The Seventh Circuit’s opinion relies on the Court’s explicit

holding in Blum v. Stenson, 465 U.S. 886 (1984) and Pennsylvania

v. Delaware Valley Citizens’ Council for Clean Air, 106 S. Ct. 3055

(1986) that lodestar fees are presumptively the reasonable award

contemplated by fees statutes, 810 F.2d at 606-08, 611; Pet. App.

at A9-11, B2. That holding is not overruled by Delaware Valley II,

and seems to represent the views of a majority of the Court

(plurality at 16; concurrence at 3-4). The continuing vitality of

the Blum/Delaware Valley I presumption underscores the fact that

petitioners’ problems are caused by failures of proof, not errors of

law.

23 The Petition asks alternatively that this case be remanded on

the question of risk enhancement (Pet. Br. at 7). That would be

inadvisable because, as shown, it would be at odds with the disposi-

tion of Delaware Valley II. In addition, as also shown, the issues

discussed in that case have already been the subject of proof,

argument, and consideration below.

14

Petitioners criticize the district court for comparing

the Consent Decree to truly exceptional outcomes in other

cases. They suggest that the Seventh Circuit’s affirmance

of that approach created an unattainable standard for

exceptional success. Pet. Br. at 14-15.

Petitioners are wrong. To begin with, it does not seem

improper to determine whether a given result is excep-

tional by judging whether it resembles outcomes that

really were. More important, the comparison petitioners

attack was not the district court’s only basis for its find-

ing on relief. The court also considered the kind of rem-

edies achieved, the average payout to class members, and

the probable impact of the Decree. 618 F. Supp. at 1056-

60, 1062-64. Pet. App. C20-28, C31-35. It could scarcely

have done more.

There are few questions more factual than whether the

result in a given case is “exceptional.” The trial judge,

especially one who has managed a case for years and

knows it intimately, is uniquely well qualified to make

that determination. Here, both lower courts thought the

outcome was commendable. They did not think, as do

petitioners, that it was “exceptional.” The difference be-

tween those two characterizations, however, does not war-

rant review by this Court.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

Of Counsel: CHRISTOPHER T. LUTZ *

EDMUND W. BURKE STEPTOE & JOHNSON

BURLINGTON NORTHERN 1330 Connecticut Ave., N.W.

RAILROAD COMPANY Washington, D.C. 20036

3800 Continental Plaza (202) 429-3000

777 Main Street * Counsel of Record for

Fort Worth, Texas 76102 Respondent Burlington

Northern Railroad Company

Dated: July 21, 1987