# Petition for Writ of Certiorari — L. K. Comstock & Co. v. Louisiana Power & Light Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2025%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 862

## Text

our, Vee
FILAD

95 24 wus 195

NO. OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995

LOUISIANA POWER & LIGHT COMPANY
VERSUS

L.K. COMSTOCK & COMPANY, INC., ET AL.
Petitioners

PETITION FOR WRIT OF CERTIORARI FROM THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT

MURTAGH, COHEN & BYRNE
Joel B. Cutler

1100 Franklin Street, Suite 303
Garden City, New York 11530
Telephone: (516) 747-1000

BRONFIN & HELLER
Robert A. Kutcher
Counsel of Record
Ashley L. Belleau
Nicole S. Tygier
Suite 2500, Poydras Center
650 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504) 568-1888
Co-Counsel for Petitioners, L.K.Comstock
& Company, Inc. and LKC, Inc.

QUESTIONS PRESENTED

I. WHETHER the Court of Appeals for the Fifth Circuit erred in
affirming the district court’s denial of Petitioners’ Motion to Amend
Judgment to enforce a Federal Rules of Civil Procedure, Rule 68 Offer of
Judgment in a multi-party antitrust litigation where the Plaintiff was
successful, recovering treble damages, attorneys’ fees and costs, but did
not prevail against the offering defendants.

II. WHETHER attorneys’ fees are recoverable as an element of costs
under a Rule 68 Offer of Judgment in an antitrust action.

Ill. | WHETHER Petitioner’s Rule 68 Offer of Judgment, served

fourteen (14) calendar days prior to the commencement of trial, was timely.

LIST OF PARTIES
In accordance with Supreme Court Rule 29.1, Petitioners submit
the following list of all parties to the proceeding in the United States
Court of Appeals for the Fifth Circuit, whose judgment is sought to be

reviewed. The parties are:

List of Petiti
l. L.K. Comstock & Company, Inc.

y LKC, Inc.

List of All Other Parti

3 Louisiana Power & Light Company
4. Fischbach and sii Inc.

5 Fischbach Corporation

6 Francis S. Kellstrom

7; The Howard P. Foley Company

8. Commonwealth Electric Company

I a hat HT Os a Sohne’: Melt SNe 2

TABLE OF CONTENTS
ee SUT EEE bcneicscounssccvveanssevep soeannvsauasoreciees snes v
EY IES BREED Wiese cscovikvnsevaceixcctavessendvveuiscceucasnees i
I hod cscs kcsyerorsnnssacogauldgscupnmnssonnminsrerennetioune li
NE OE * 0 55cC eas siveovedatuesehis tenstdssdbesteimeyeaauieeincldinneed |
es onda us scscncoavesddextebstnsveatedesecesssiaceheesiones |
STATUTORY PROVISIONS INVOLVED ..................ccccceeeeeeeeees 2
ee EB UEEE BOPRTIES cpnccusdgvaverccovavavcsnsecsensysovsoncsconnesi 3
REASONS FOR GRANTING THE PETITION ....0......escssssssessseeeeeeeees 6

I. RULE 68 COSTS RECOVERABLE BY PREVAILING
DEFENDANTS FROM THE PLAINTIFF WHO
OBTAINS A JUDGMENT AGAINST CO-
nce Ac ccicacossthcerscaccessereaes 10

II. RULE 68 REQUIRES THE PLAINTIFF TO PAY THE
COSTS OF LITIGATION, INCLUDING
ATTORNEYS’ FEES, OF PREVAILING

a sacceenadimmnns 15
Ill. COMSTOCK’S OFFER OF JUDGMENT, DATED JULY 22,
I TNE CE Gcssecacssecntdevessanvisinansecshiosevcssteancovinds 18
a sce cai iihigshiracesibaipuensGivnnmndédabdurtisubanavamsoinionliaa 22
APPENDIX A
Judgment of the Fifth Circuit
Court of Appeals
Sn sbediicisquanepieasasinedbinnne A-1
APPENDIX B
Offer of Judgment
RESETS ES IC NEE RT B-1
ili

APPENDIX C
Jury Verdict,
dated September 24, 1992 ........:scscsssssessssssseessesesenensnsnenenseensneneeess C-1

APPENDIX D
Judgment of the Eastern District of Louisiana,
Judge Marcel Livaudais, Jr.
dated September 25, 1992 .........sccscssssesssssenssnneessesssreseneesenesesesens D-1

APPENDIX E
Rulings on Motions of the
Eastern District of Louisiana
Judge Marcel Livaudais, Jr.
dated November 5, 1992 ...........csccccccccsssssscssccccscccerecesssssssressessoess E-1

iv

CASES

Cf Cover v. Chicago Eye Shield Co.,
136 F.2d 374 (7th Cir.), cert. denied,
320 U.S.749, 64 S.Ct. 53, 88 L.Ed. 445 (1943) one 21

Crossman v. Marcoccio,
806 F.2d 329, 332 (1st Cir. 1986),
FF es ET Biite. BUNCITNIIED ceiicccccnsccssosecincecsiviccsnsssavencaties 10

Delta Airlines v. August,
450 U.S. 346, 352, 101 S.Ct. 1146,
ey OF Re AT CEPOL) wtiiecdkiilariidictaresvenis 6-9, 11, 12-15

Dual v. Cleland,
Fe es ME CRIP, RTOS iisheeshetasennseipininsontnnnssoitindeiinncs 10

Gay v. Waiters’ and Dairy Lunchmen’s Union, Local 30,
ee ee Ue CII, BPMN vaicinincceszddenniasincearsadaivebuces 10

Greenwood v. Stevenson,
ee, he BPD s the Su-
preme Court refused to calculate interest from the date of an original
judgment that was invalidated because it was not supported by the evi-
dence. 494 U.S. at 835-36, 110 S. Ct. at 1576. “Where the judgment on
damages was not supported by the evidence, the damages have not been

7” Because LP&L recovered under a mandatory fee shifting statute, it became
entitled to fees on the date of judgment on the merits.

” 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990).

A- 21

‘ascertained’ in any meaningful way.” /d. Fischbach contends that, because
attorneys’ fees are not quantified at the time of the judgment on the merits,
Kaiser must have overruled Copper Liquor. Since Kaiser, three Circuits
have addressed this issue. The Seventh and Tenth Circuits held that Kaiser
does supersede Copper Liquor.” The Eighth Circuit disagreed,”’ deciding
that Kaiser did not squarely address the issue in Copper Liquor. Jenkins,
931 F.2d at 1276 n.3. We agree with the Eighth Circuit. Because the earlier
judgment in Kaiser was invalid, the party had no entitlement to damages on
that date. Thus, the reasoning in Kaiser is consistent with Copper Liquor's
mandate that interest should not accrue until the party becomes entitled to
the award. Indeed, Copper Liquor and Kaiser are consistent in that in nei-
ther case does interest accrue for amounts later reversed. See Copper Li-
quor, 701 F.2d at 545 (“Ifa judgment for attorneys’ fees is later modified
by the district court or an appellate court, whether the award is increased or
reduced, interest on the revised award will run from the date of the original
judgment unless, of course, the allowance of any amount is reversed.”) . We
therefore hold that Kaiser did not overrule Copper Liquor, so that the dis-
trict court here did not err in awarding postjudgment interest from the date
of the judgment on the merits.
D

In its final challenge, Fischbach contests the award of $45,330.96
in fees for LP&L’s experts’ response to discovery. Ordinarily, recovery
of expert fees is limited to the statutory amounts authorized under 28

- Midamerica Fed. Sav. & Loan Ass'n v. Shearson/American Express, Inc.,
962 F.2d 1470, 1476 (10th Cir. 1992) (stating that “[k]ey to the Kaiser holding is the date damages
are ‘ascertained’ in a meaningful way”); Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990)
Gaeeng: interest from date of award of fees).
Jenkins v. Missouri, 931 F.2d 1273, 1276-77 (8th Cir.) (adopting Copper
Liquor rule), cert. denied, U.S.__112 S. Ct. 338, 116 L. Ed. 2d 278 (1991).

A-22

U.S.C. § 1821 and 1920. See Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 439, 107 S. Ct. 2494, 2496, 96 L. Ed. 2d 385 (1987)
(“[WJhen a prevailing party seeks reimbursement for fees paid to its own
expert witnesses, a federal court is bound by the limit of § 1821(b), ab-
sent contract or explicit statutory authority to the contrary.”); see also
West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, _,111 S. Ct.
1138, 1140-41, 113 L. Ed. 2d 68 (1991) (limiting witness fees to statu-
tory amounts, absent express statutory authority).

Rule 26(b\(4)\(c), however, provides an independent basis for recov-
ery of expert fees as part of discovery. See Fed. R. Civ. P. 26(b)(4)(c);”8
see also Chambers v. Ingram, 858 F.2d 351, 361 (7th Cir. 1988) (affirm-
ing award of Rule 26(b)(4)(c) costs as separate from § 1821 witness fees).
Accordingly, the district court correctly granted LP&L’ s request for Rule
26 (b)(4)(c) costs.

But Rule 26(b)(4)(c) applies to both parties, not just to the prevail-
ing party. The district court should also have awarded Rule 26 (b)(4)(c)
costs to Fischbach. The court considered this argument but found the
issue moot, concluding that, even if Fischbach was entitled to these costs,
LP&L could have recovered them under the fee shifting provisions of the
antitrust laws. See 15 U.S.C.§ 15 (1988) (allowing recovery of cost of
suit). We disagree.

Previously, we have allowed a prevailing antitrust plaintiff to re-
cover all expenses of the litigation. See, e.g., Copper Liquor, Inc. v. Adolph
Coors Co., 684 F.2d 1087, 1100 (Sth Cir. 1982) (holding that “the Clayton

= Rule 26(b)\(4)(c) provides:

[T}he court shall require that the party seeking discovery shall pay the expert a
reasonable fee for time spent in responding to discovery ... . Fed. R. Civ. P.
26(b\(4)(c).

A-23

Act embraces all the ordinary and reasonable expenses of litigation”), modi-
fied on other grounds on appeal after remand, 701 F.2d 542 (Sth Cir. 1983).
In West Virginia University Hospitals, Inc. v. Casey,’ however, the Su-
preme Court ruled that a prevailing plaintiff cannot recover expert fees un-
der a fee shifting statute unless the statute expressly provides for the recov-
ery of expert fees. 499 U.S. at__, 111 S. Ct. at 1141-43 (absent specific
statutory authorization, shifting of attorneys’ fees does not include expert
witness fees). We therefore conclude that expert fees are Rule 26(b)(4)(c)
costs and are not recoverable under Casey. Consequently, we reverse the }
district court’s denial of Fischbach’s entitlement to recover Rule 26(b)(4)(c)
costs. And, as Fischbach documented its costs and LP&L did not refute the
quantum, we render judgment in favor of Fischbach and against LP&L in
the requested amount of $10,994.21 for Fischbach’s expert witness expenses.

The Comstock Appeal: |

Comstock challenges several elements of the district court’s final q
award of costs and fees. First, it contests the denial of Rule 68 fees. ;
Second, Comstock disputes the final assessment of certain elements of /
the taxation of costs. Last, it insists that the district court neglected to j

award fees and costs that Comstock incurred in connection with the in- |

stant fee and costs portion of the suit.
A
Comstock argues that the district court erred in ruling that it should ]
not recover fees and costs from LP&L under Rule 68 of the Federal Rulesof
Civil Procedure. Interpretation of Rule 68 is an issue of law which we |
review de novo. Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1404 (10th

- 499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).

A- 24

Cir. 1993); Erdman v. Cochise County, 926 F.2d 877, 879 (9th Cir. 1991).

Rule 68 states:

At any time more than 10 days before the trial begins, a
party defending against a claim may serve upon the adverse
party an offer to allow judgment to be taken against the
defending party.... If within 10 days after the service of the
offer the adverse party serves written notice that the offer is
accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and there-
upon the clerk shall enter judgment .... If the judgment fi-
nally obtained by the offeree is not more favorable than the
offer the offeree must pay the costs incurred after the mak-

ing of the offer....
Fed. R. Civ. P. 68.

The purpose of Rule 68 is to encourage the settlement of litigation
by providing an incentive to settle “in those cases in which there is a strong
probability that the plaintiff will obtain a judgment but the amount of the
recovery is uncertain.” Delta Airlines, Inc. v. August, 450 U.S. 346, 352,
101 S. Ct. 1146, 1150, 67 L. Ed. 2d 287 (1981). Rule 68 requires a pre-
vailing plaintiff to pay the costs of litigation “in the single circumstance
where the plaintiff does not accept the defendant’s offer of judgment which
is more favorable than the judgment the plaintiff ultimately obtains.”
Johnston v. Penrod Drilling Co. , 803 F. 2d 867, 869 (Sth Cir. 1986) Con-
sequently, when a plaintiff rejects a Rule 68 offer of judgment, “he will lose
some of the benefits of victory if his recovery is less than the offer.” Delta,
450 US. at 352, 101 S. Ct. at 1150.

If a plaintiff takes nothing, however, Rule 68 does not apply. In
Delta Airlines, Inc. v. August, the Supreme Court limited Rule 68 to

- 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981).

A- 25

cases in which a plaintiff obtains a judgment against the defendant; the rule

is not applicable when a defendant actually prevails over the plaintiff. See
450 US. at 351-52, 101 S. Ct. at 1149-50 (finding Rule 68 “simply inap-
plicable to this case because it was the defendant that obtained the judg-
ment”) ; see also Landon v. Hunt, 938 F.2d 450, 452 n.1 (3d Cir. 1991)
(commenting that defendant could not recover under Rule 68 when plaintiff ’s
claim was dismissed); Allen v. United States Steel Corp., 665 F.2d 689, |
697 (Sth Cir. 1982)(refusing Rule 68 costs to a defendant who prevailed).
The Court noted that costs are usually assessed against a losing plaintiff as
a normal incident of defeat but that this exception is created so that “a
nonsettling plaintiff does not run the risk of suffering additional burdens
that do not ordinarily attend to a defeat... .” 450 U.S. at 352, 101 S. Ct. at
1150.

Comstock contends that it should recover Rule 68 costs because,
instead of a take nothing judgment, LP&L recovered $500,000. Comstock
argues that Delta is inapplicable because LP&L was not defeated, and it
should lose some of the “benefits of victory” for failing to accept
Comstock’s reasonable offer of judgment.

Here, plaintiff LP&L’s recovery was against other defendants, how-
ever; plaintiff LP&L took nothing against defendant Comstock. In other
words, defendant Comstock actually prevailed totally against plaintiff LP&L.
Comstock has not presented any argument that would compel a Rule 68
comparison of its offer of judgment to LP&L and the judgment that LP&L
obtained against other defendants. Rule 68 operates by comparing two clearly
defined amounts. Johnston, 803 F.2d at 870. This comparison is of the
“money or property,” including “costs then accrued,” set out in the offer
and the “judgment finally obtained by the offeree.” Fed. R. Civ. P. 68.

A - 26

Accordingly, Rule 68 compares the amount of an offer of judgment,
whether made by one defendant or jointly made by multiple defendants,”'
and the amount of the judgment, if any, taken by the offeree against the
offeror or offerors. If no judgment is taken by the offeree plaintiff against
the offeror defendant or joint offeror defendants, the Delta rule applies.

Comstock made an offer of judgment to LP&L, and LP&L took
nothing against Comstock. LP&L’s recovery against other non-offeror de-
fendants - none of which were joint offerors with Comstock - is irrelevant to
the Rule 68 inquiry. Consequently, Comstock cannot recover its fees under
Rule 68.”

B

Additionally, Comstock challenges the district court’s approval of
the clerk of court’s final taxation of costs against LP&L, arguing that the
clerk erroneously struck certain items. We will not overturn the district
court’s taxation of costs absent a clear abuse of discretion. Nissho-Iwai
Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1551 (Sth Cir. 1984);
Studiengesellschaft Kohle mbh v. Eastman Kodak Co., 713 F.2d 128, 131
(5th Cir. 1983). Although Rule 54(d) of the Federal Rules of Civil Proce-
dure directs a district court to award costs to a prevailing party,*’ that court

- We have previously encountered the question whether recovery against one

defendant may apply to a Rule 68 determination with respect to another defendant-offeror. In
Johnston v. Penrod Drilling Co., 803 F.2d 867, 870 (Sth Cir. 1986), two defendants made an
unapportioned joint offer of judgment to the plaintiff. We vacated the district court’s decision
because it had not included the settlement against the first defendant in the Rule 68 calculation for
the second defendant. Johnston is distinguishable, however, because the settlement was made with
a joint offeror, not with an unrelated defendant.

= Comstock also appealed the district court’s finding that its Rule 68 offer of
judgment was not timely. Our decision regarding the applicability of Delta renders that issue moot.

= Rule 54(d) provides:
Except when express provision therefor is made either in a statue of the United
States or in these rules, costs other than attorneys’ fees shall be allowed to the

A-27

cannot award any costs not authorized by statute. “[E]xpenditures for those
categories of expenses listed in 28 U.S.C. § 1920 may be recovered only if
they are allowed by that section. Copper Liquor, Inc. v. Adolph Coors Co.,
684 F.2d 1087, 1101 (Sth Cir. 1982). Section 1920 provides:

A judge or clerk of any court of the United States may tax as
costs the following:

(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers nec-
essarily obtained for use in the case;

28 U.S.C. 1920 (1988). Moreover, “[i]tems proposed by winning parties as
costs should always be given careful scrutiny.” Farmer v. Arabian Ameri-
can Oil Co., 379 U.S. 227, 235, 85 S. Ct. 411, 416, 13 L. Ed. 2d 248
(1964) .

Comstock first contends that the district court erred when it refused
to allow witness fees for each day that two of its experts attended the trial.»
It is true that a party may recover witness fees not only for days on which the
witness testified, but also for days spent attending the trial beforehand.
See Nissho-Iwai, 729 F.2d at 1552-53 (allowing fees for days prior to
witnesses’ testimony). Fees for these preliminary days are limited, how-
ever, to days that witnesses spend holding themselves available to testify.
See Hurtado v. United States, 410 U.S. 578, 584, 93 S. Ct. 1157, 1161,
35 L. Ed. 2d 508 (1973)(allowing fees for days spent “in readiness to

prevailing party unless the court otherwise directs... .
Fed. R. Civ. P. 54 (d).

a Comstock’s experts, David Pike and E.J. Janik, attended 38 and 11 days of
trial, respectively. Pike testified on three days, and Janik testified on one day. The district court
actually granted five days for Pike and three days for Janik. This equated to the number of days
spent testifying plus travel before and after.

A- 28

testify”); Nissho-Iwai, 729 F.2d at 1552 (granting fees for days witness
expected to, but did not actually, testify). The district court approved its
clerk’s determination that only a portion of the days Pike and Janik at-
tended the trial were expended in the expectation that they would testify
on those days. We find no abuse of discretion in this decision.

Comstock next insists that the district court should have allowed
recovery of the costs of defendants’ trial exhibits. A district court may
authorize the production of trial exhibits if so doing would “facilitate the
just, speedy, and inexpensive disposition of the action.” Fed. R. Civ. P.
16(c)(16); see also Johns-Manville Corp. v. Cement Asbestos Prods. Co.,
428 F.2d 1381, 1385 (Sth Cir. 1970) (looking to Rule 16 for pretrial au-
thorization of models and charts). Absent pretrial approval of the exhib-
its, however, a party may not later request taxation of the production
costs to its opponent. Johns-Manville, 428 F.2d at 1385; see also
Studiengesellschaft, 713 F.2d at 133 (reversing award of exhibit costs
where party had not obtained pretrial authorization). Comstock asserts
that the pretrial order authorized the production of its exhibits by requir-
ing exhibits to be “exchanged prior to trial in accordance with this or-
der.” We find no such authorization in this language: Requiring the ex-
change of exhibits prior to trial does not imply authorization of produc-
tion of those exhibits. Accordingly, the district court did not err in deny-
ing recovery by Comstock of the costs of its exhibits.

Comstock also challenges the district court’s affirmance of the
clerk of court’s valuation of Comstock’s allowable photocopying charges.
On this claim Comstock presents virtually no legal argument; instead, it
simply alleges conclusionally that both the clerk and the district court
abused their discretion. After reviewing the record, we find that the clerk

A-29

of court carefully assessed each item in the request. Consequently, we find
no abuse of discretion by either the clerk or the district court.

And, like Fischbach, Comstock challenges the district court’s si-
: multaneous award of Rule 26(b)(4)(c) costs to LP&L and denial of the
same costs to Comstock. It submitted requests for its share of such cost
in the sum of $7,254.98; and although LP&L contests the timeliness of
Comstock’s request and complains in a conclusionary manner that
Comstock overstated its claim and failed to offer evidence of its method
of calculation, the dollar amount itself is not truly disputed. We have
already discussed Rule 26(b)(4) (c) in our review of Fischbach’s appeal,**
and that analysis applies here as well. Comstock is thus entitled to these
costs in the amount requested.

LP&L responds that, even if Comstock is allowed recovery of
Rule 26(b)(4)(c) costs, its request for these costs was not timely under
Local Rule 5.04E.* Comstock timely filed its original application for
taxation of costs, but did not add its request for Rule 26 costs until nine
months later. Although Local Rule 5.04E imposes a thirty day limit on
cost applications and supporting memoranda, this rule specifically refers
to costs recoverable by “the party in whose favor judgment is rendered.”
Fed. Local Ct. Rules, E.D. La., Rule 5.04E. We have already noted that
Rule 26(b)(4)(c) costs are not limited to prevailing parties; and we hold
that Rule 26(b)(4)(c) fees do not fall within the kinds of costs covered by

- See supra Part II (Fischbach Appeal), D.

” Local Rule 5.04E provides:
Within thirty days after receiving notice of entry of judgment, unless otherwise
ordered by the court, the party in whose favor judgment is rendered and who
claims and is allowed costs, shall . . . file with the Clerk a notice of application to
have the costs taxed... .

Fed. Local Ct. Rules, E.D. La., Rule 5.04E.

A - 30

Local Rule 5.04E. See also Chambers, 858 F.2d at 360-61 (“The advisory
committee notes to Rule 26(b)(4)(c) state that the court may issue an order
to pay fees as a condition to discovery ‘or it may delay the order until after
discovery.”” (quoting Fed. R. Civ. P. 26 (b)(4)(c))). Accordingly, we hold
that the district court improperly denied Comstock’s Rule 26 (b)(4)(c) re-
quest and render judgment in favor of Comstock and against LP&L in the
sum of $7,254.98 to cover those items.*’
C

Comstock’s last contention is that the district court erred when it
refused to award costs and fees to Comstock for pursuing its cost applica-
tion. A district court may award costs and fees for time spent litigating a
cost or fee request. See Alberti v. Klevenhagen, 896 F.2d 927, 937-38 (Sth
Cir.) (affirming taxation of costs for expenses solely related to fee litiga-
tion), vacated on other grounds, 903 F.2d 352 (Sth Cir. 1990). We shall
not, however, disturb a district court’s decision regarding fees for cost
recovery litigation absent an abuse of discretion. See id.; see also Chemi-
cal Mfrs. Ass'n v. U.S.E.P.A., 885 F.2d 1276, 1283 (Sth Cir. 1989) (ap-
proving compensation for time spent on fee application because amount
was within district court’s discretion); Spray-Rite Serv. Co. v. Monsanto
Co., 684 F.2d 1226, 1250 (Sth Cir. 1982)(affirming district court’s dis-
cretion in awarding fees and costs for time spent litigating its right to
fees). Comstock recovered only part of the costs and fees it requested. In
challenging Comstock’s request, LP&L too was only partially success-
ful. Refusing to tax fees and costs for the instant cost litigation fell well

sad We do not mean to imply that, under all circumstances, a party may file a
request for Rule 26(b)\(4)(c) costs nine months after judgment on the merits. The record reflects
multiple changes and disputes about the fees extending over a period of many months. Accord-
ingly, we merely hold that on the specific facts of this case, Comstock may recover its Rule
26(b\4\(c) costs.

A-3l

within the district court’s proper exercise of its discretion.
i

For the foregoing reasons, we affirm the district court’s determi-
nation of LP&L’s reasonable hourly rates for its attorneys, but we modify
the district court’s determination of LP&L’s reasonable hours, reducing
by 10% the specific portions of those fees challenged by Fischbach as
inadequately detailed, and eliminating entirely the portion of the district
court’s award that allowed $6,465.00 in fees for Attorney Madigan. We
also affirm the district court’s (1) 15% overstaffing reduction of LP&L’s
lodestar amount; (2) award of postjudgment interest from the date of the
judgment on the merits; (3) award to LP&L of costs (including Rule
26(b)(4)(c) costs, other expenses, and fees for other attorneys). Further,
we affirm the district court’s award of attorneys’ fees to Comstock and
its denial of Rule 68 costs to Comstock, and we affirm the quantum of
the district court’s costs taxation to Comstock; but we reverse the district
court’s denial of Rule 26 (b)(4)(c) costs to Fischbach and to Comstock,
and render judgment therefor against LP&L and in favor of Comstock in
the amount of $7,254.98, and in favor of Fischbach in the amount of
$10,994.21.

As modified, the award to LP&L against Fischbach is as follows:

Original fee request: $4,327,276.30
10% reduction - inadequate documentation: (35,206.50)
Fees disallowed for Attorney Madigan (6,465.00)
- Percentage reduction applicable to (1) $115,070 reflected in quarterly sum-

maries for period from February 1986 to July 1987; (2) $154,080 reflected in month-end summa-
ries for two attorneys during 1987 and 1988; and (3) $82,915 for charges in November and De-
cember 1988, for which no time records were submitted, totaling in the aggregate $352,065.00.

A - 32

Lodestar $4,285,604.80

15% reduction - overstaffing:*” (642,840.72)
Reasonable Attorneys Fees: $3,642,764.08
Costs $172,246.61
Other expenses 322,876.90
Fees for other attorneys 9,585.36
GROSS AWARD: $4,147,472.95
LESS: Rule 26 costs from LP&L to Fischbach (10,994.21)
Net Award: LP&L against Fischbach $4,136,478.74

In conclusion we hereby enter judgment in the net sum of
$4,136,478.74, plus postjudgment interest, against Fischbach and in favor
of LP&L; and we increase the district court’s judgment against LP&L and
in favor of Comstock by $7,254.98 for its Rule 26 costs.

” This reduction was imposed by the district court.

A - 33

AFFIRMED in part; MODIFIED and, as modified, AFFIRMED in part;
and REVERSED and RENDERED in part.

A - 34

EMILIO M. GARZA, Circuit Judge, concurring in part, and dissenting in
part:

I concur in the above opinion with the exception of Part II.B. In my
view, the district court applied the wrong legal standard and abused its dis-
cretion in refusing to adjust the lodestar for LP&L’s limited success. The
district court stated that “recovery of the[] reasonable attorney’s fees must
be sustained regardless of the amount of damages awarded, and explained
that cases such as Farrar v. Hobby, US._, _, 113 S. Ct. 566,
574, 121 L. Ed. 2d 494 (1992)(calling the degree of success the most
crucial element in determining the amount of a reasonable fee) , and
Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 1943, 76 L.
Ed. 2d 40 (1983) (“A reduced fee award is appropriate if the relief, how-
ever significant, is limited in comparison to the scope of the litigation as
a whole.”), did not apply to mandatory fee statutes.' Accordingly, the
district court did not even consider the magnitude of LP&L’s success.’ The
Supreme Court explicitly has dictated otherwise: Farrar and Hensley ap-
ply to all cases.*? Because the district court failed to apply the correct legal

standard, I would reverse. Moreover, in my view, a recovery of less than

' See supra, per curiam opinion, text accompanying note 21.

. The majority finds this statement “puzzling” and suggests that the district court
did consider the magnitude of LP&L’s success. The district court, however, only “considered”
LP&L’s limited success as a threshold question, that is, whether a mandatory fee statute permits
any consideration of limited success. Because the district court answered this question “no,” it
never reached the question of whether to “act on [the limited success].” It is the failure to reach this
secondary question which I challenge and to which I refer here.

, See supra per curiam opinion, text accompanying notes 22-23, explaining that
the district court’s ruling confuses the right to recover fees with the determination of the amount of
that fee, and that a finding of significant result alone does not satisfy the district court’s duty to
evaluate the magnitude of that result. As in Hensley, the district court’s finding that LP&L’s
success was significant “does not answer the question of what is ,reasonable, in light of that level of
success.” 461 U.S. at 439, 103 S. Ct. at 1942.

A - 35

five percent of the damages requested and against only two of twelve defen-
dants warrants some reduction of fees. For these reasons, I would hold that
the district court abused its discretion in refusing to reduce the lodestar, and
either remand to the district court to apply the proper standard and to deter-
mine what percentage reduction, if any, is warranted by the record’s demon-
stration of LP&L’s limited success, or, alternatively, reduce the lodestar by
an additional twenty percent. Because the per curiam opinion affirms the
district court’s ruling on this point, I respectfully dissent.

APPENDIX B

2156U

417/13117
92072202
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA POWER & LIGHT COMPANY * CIVIL ACTION
*
VERSUS * NO. 86-0594
a
FISCHBACH AND MOORE, INC., FISCHBACH * SECTION “E”
CORPORATION, THE HOWARD P. FOLEY COMPANY, *
INC., L. K. COMSTOCK & COMPANY, INC., * MAGISTRATE 3
LKC, INC., COMMONWEALTH ELECTRIC ‘a
COMPANY, INC., COMMONWEALTH COMPANIES, x
INC., LORD ELECTRIC COMPANY, INC., . FILED JUL 22
and E.C. ERNST, INCORPORATED . 10 59 AM ‘92

SESS eee eeeeeeeeeeees

OFFER OF JUDGMENT

TO: MONROE & LEMANN
201 St. Charles Avenue
Suite 3300
New Orleans, Louisiana 70170-3300

Attorneys for Louisiana Power & Light Company

Pursuant to Rule 68 of the Federal Rule of Civil Procedure, de-
fendants, L.K. COMSTOCK & COMPANY, INC. and LKC, INC.
hereby offer to allow judgment to be taken against them in this action, in
the amount of One Hundred and Fifty Thousand Dollars ($150,000.00)
which sum includes: 1) interest, 2) all plaintiffs’ costs accrued to date and
3) all reasonable attorney’s fees to which the plaintiffs would be entitled.
This offer of judgment is made for the purposes specified in Federal Rules
of Civil Procedure Rule 58, and is not to be construed either as an admis-

B-1

sion that the defendants are in any respect liable in this action, or that the
plaintiff has suffered any damage.

Respectfully submitted:

Joel B. Cutler

MURTAGH, COHEN & BYRNE

1100 Franklin Avenue, Suite 303

Garden City, New York 11530

Telephone: (516) 747-1000

CO-COUNSEL FOR L.K. COMSTOCK & —
COMPANY, INC. AND LKC, INC.

Signed By Robert A. Kutcher
Robert A. Kutcher, Bar No. 7895
Ashley L. Belleau, Bar No. 14077
- BRONFIN & HELLER
650 Poydras Street, Suite 2500
New Orleans, Louisiana 70130-6101
Telephone: (504) 568-1888
CO-COUNSEL FOR L.K. COMSTOCK &

COMPANY, INC. AND LKC, INC.

CERTIFICATE
I hereby certify that a copy of the above and foregoing has been forwarded

to all counsel of record by mailing same, postage prepaid,
this 22 day of July, 1992.

Signed By Robert A. Kutcher

APPENDIX C

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LOUISIANA POWER & LIGHT CO. CIVIL ACTION

versus NO. 86-0594
SECTION: E/6

FISCHBACH AND MOORE, INC.,

FISCHBACH CORP.,

L. K. COMSTOCK, INC.,

LKC, INC.

COMMONWEALTH ELECTRIC CO.
COMMONWEALTH COMPANIES, INC.
THE HOWARD P. FOLEY CO.

JOHN D. KEYS

LEWIS E. EASTHAM

J. R. STURGILL, JR.

PAUL M. MURPHY

FRANCIS S. KELLSTROM

INTERROGATORIES TO THE JURY

l. DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT A DEFENDANT VIOLATED THE FEDERAL ANTI-
TRUST LAWS (SHERMA ACT) BY CONSPIRING TO RIG
THE AWARD OF THE ELECTRICAL CONTRACT OF THE
WATERFORD 3 PROJECT, CAUSING PLAINTIFF DAMAGE?

YES X NO
IF YOUR ANSWER TO QUESTION NO. 1 IS YES PLEASE
ANSWER QUESTION NO. 2. IF YOUR ANSWER TO QUES-
TION NO. 1 IS NO PLEASE SKIP QUESTION NO. 2 AND

C-1

PROCEED TO QUESTION NO. 3.

WHICH OF THE DEFENDANTS DO YOU FIND IN VIOLA-
TION OF THE FEDERAL ANTITRUST LAWS?

A) FISCHBACH AND MOORE, INC. YES X NO

B) L.K. COMSTOCK, INC. YES NO X
C) COMMONWEALTH ELECTRIC CO. YES X NO

D) COMMON WEALTH COMPANIES, INC. YES NO X

E) THE HOWARD P. FOLEY CO. YES X NO
F) JOHN D. KEYS YES NO X
G) LEWIS E. EASTHAM YES NO X
H) J.R. STURGILL, JR. YES NO X
1) PAUL M. MURPHY YES NO X
J) FRANCIS S. KELLSTROM YES X NO

PLEASE PROCEED TO QUESTION NO. 3.

DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT ANY DEFENDANT VIOLATED THE LOUISIANA
STATE ANTITRUST LAWS BY CONSPIRING TO RIG THE
AWARD OF THE ELECTRICAL CONTRACT OF THE
WATERFORD 3 PROJECT, CAUSING PLAINTIFF DAMAGE?
YES X NO
IF YOUR ANSWER TO QUESTION NO. 3 IS YES PLEASE
PROCEED TO QUESTION NO. 4. IF YOUR ANSWER TO
QUESTION NO. 3 IS NO PLEASE SKIP QUESTION NO. 4

AND PROCEED TO QUESTION NO. 5.

WHICH OF THE DEFENDANTS DO YOU FIND IN VIOLA-
TION OF THE LOUISIANA STATE ANTITRUST LAWS?

A) FISCHBACH AND MOORE, INC. YES X
B) L.K. COMSTOCK, INC. YES

C) COMMONWEALTH ELECTRIC CO. YES X
D) COMMONWEALTH COMPANIES, INC. YES
E) THE HOWARD P. FOLEY CO. YES X
F) JOHN D. KEYS YES

G) LEWIS E. EASTHAM YES

H) J.R. STURGILL, JR. YES

I) PAUL M. MURPHY YES

J) FRANCIS S. KELLSTROM YES X

PLEASE PROCEED TO QUESTION NO. 5.

NO
NO X
NO
NO X
NO
NO X
NO X
NO X
NO X
NO

DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT ANY DEFENDANT VIOLATED SEC. 1962(c) OF THE
FEDERAL RACKETEER INFLUENCED AND CORRUPT OR-
GANIZATIONS ACT (RICO) BY KNOWINGLY AND WILL
FULLY CONDUCTING OR PARTICIPATING, DIRECTLY OR
INDIRECTLY IN THE CONDUCT OF THE AFFAIRS OF AN
ENTERPRISE ENGAGED IN, OR THE ACTIVITIES OF
WHICH AFFECTED INTERSTATE OR FOREIGN COM-
MERCE, THROUGH A PATTERN OF RACKETEERING ACT-
IVITY, WHILE EMPLOYED BY OR ASSOCIATED WITH
SUCH ENTERPRISE, CAUSING PLAINTIFF DAMAGE?

C-3

YES X NO
IF YOU ANSWERED YES TO QUESTION NO. 5 PLEASE
PROCEED TO QUESTION NO. 6. IF YOU ANSWERED NO
TO QUESTION NO. 5 PLEASE SKIP QUESTION NO. 6 AND
PROCEED TO QUESTION NO. 7.

WHICH OF THE DEFENDANTS DO YOU FIND IN VIOLA-
TION OF SEC. 1962(c)?

A) FISCHBACH AND MOORE, INC. YES X NO

S) L.K. COMSTOCK, INC. YES NO X
C) COMMONWEALTH ELECTRIC CO. YES X NO

D) COMMONWEALTH COMPANIES, INC. YES NO X

E) THE HOWARD P. FOLEY CO. YES X NO
F) JOHN D. KEYS YES NWO X
G) LEWIS E. EASTHAM YES NO X
H) J.R. STURGILL, JR. YES NO X
I)PAUL M. MURPHY YES NO X
J) FRANCIS S. KELLSTROM YES X NO

PLEASE PROCEED TO QUESTION NO. 7

DO YOU FIND FROM A PREPONDERANCE OF THE EVI-
DENCE THAT ANY DEFENDANT VIOLATED SEC. 1962(d)
OF THE RICO ACT BY ENTERING INTO A CONSPIRACY
WITH ANY OTHER PERSON OR CORPORATION TO CON-
DUCT OR PARTICIPATE, DIRECTLY OR INDIRECTLY, IN
THE CONDUCT OF THE AFFAIRS OF AN ENTERPRISE

C-4

WHICH WAS ENGAGED IN, OR THE ACTIVITIES OF
WHICH AFFECTED INTERSTATE COMMERCE OR FOR-
EIGN COMMERCE THROUGH A PATTERN OF RACKET-
EERING ACTIVITY, WHILE EMPLOYED BY OR ASSO-
CIATED WITH SUCH ENTERPRISE, CAUSING PLAINTIFF
DAMAGE?

YES X NO
IF YOUR ANSWER TO QUESTION NO. 7 IS YES PLEASE
PROCEED TO QUESTION NO. 8. IF YOUR ANSWER TO
QUESTION NO. 7 IS NO PLEASE SKIP QUESTION NO. 8
AND PROCEED TO QUESTION NO. 9.

8. WHICH OF THE DEFENDANTS DO YOU FIND IN
VIOLATION OF SEC. 1962(d)?

A) FISCHBACH AND MOORE, INC. YES X NO
B) L.K. COMSTOCK, INC. YES NO X
C) COMMONWEALTH ELECTRIC CO. YES X NO
D) COMMONWEALTH COMPANIES, INC. YES NO X

E) THE HOWARD P. FOLEY CO. YES X NO

F) JOHN D. KEYS YES NO X
G) LEWIS E. EASTHAM YES NO X
H) J.R. STURGILL, JR. YES NO X
I) PAUL M. MURPHY YES NO X
J) FRANCIS S. KELLSTROM YES NO X

IF YOUR ANSWERS TO QUESTIONS 1, 3, 5 AND 7 ARE NO PLEASE
DATE AND SIGN THIS FORM AND HAND IT TO THE MARSHAL

—

C-5

AND ADVISE HIM THAT YOU HAVE REACHED A VERDICT. IF
YOU ANSWERED YES TO QUESTIONS 1, 3, 5OR7 PLEASE
PROCEED TO QUESTION NO. 9.

9. DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT DEFENDANTS FRAUDULENTLY CONCEALED
THEIR BID RIGGING OF THE ELECTRICAL CONTRACT OF
THE WATERFORD 3 PROJECT SO THAT PRIOR TO FEBRU-
ARY 7, 1982 LP&L DID NOT KNOW OR WAS UNABLE TO
DISCOVER BY THE EXERCISE OF DUE DILIGENCE THAT
THE CONTRACT WAS RIGGED AND THAT IT MAY HAVE
SUFFERED DAMAGE AS A RESULT?

‘YES X NO
IF YOUR ANSWER TO QUESTION NO. 9 IS NO PLEASE
DATE AND SIGN THIS FORM AND HAND IT TO THE MAR-
SHAL AND ADVISE HIM THAT YOU HAVE REACHED A
VERDICT. IF YOUR ANSWER TO QUESTION NO. 9 IS YES
PLEASE PROCEED TO QUESTION NO. 10.

10. ._DOYOUFINDBY A PREPONDERANCE OF THE EVIDENCE
THAT DEFENDANTS FRAUDULENTLY CONCEALED
THEIR BID RIGGING OF THE ELECTRICAL CONTRACT OF
THE WATERFORD 3 PROJECT SO THAT PRIOR TO
FEBRUARY 7, 1985 LP&L DID NOT KNOW OR WAS
UNABLE TO DISCOVER BY THE EXERCISE OF DUE
DILIGENCE THAT THE CONTRACT WAS RIGGED AND
THAT IT MAY HAVE SUFFERED DAMAGE AS A RESULT?

Te 06lCUW SS

C-6

PLEASE PROCEED TO QUESTION NO. 11.

11. DOYOUFIND BY A PREPONDERANCE OF THE EVIDENCE
THAT FISCHBACH CORPORATION WAS ESTABLISHED
FOR FRAUDULENT PURPOSES SUCH THAT IT MAY BE
HELD LIABLE FOR ANY BID RIGGING COMMITTED BY
FISCHBACH AND MOORE, INC.?

YES X NO
PLEASE PROCEED TO QUESTION NO. 12.

12. DOYOUFINDBY A PREPONDERANCE OF THE EVIDENCE
THAT LKC, INC. WAS ESTABLISHED FOR FRAUDULENT
PURPOSES SUCH THAT IT MAY BE HELD LIABLE FOR
ANY BID RIGGING COMMITTED BY L. K. COMSTOCK,
INC.?

YES NO X
PLEASE PROCEED TO QUESTION NO. 13.

13. |. WHAT AMOUNT OF DAMAGES, IF ANY, DO YOU FIND BY
A PREPONDERANCE OF THE EVIDENCE THAT LP&L
SUSTAINED AS A RESULT OF THE VIOLATIONS OF
FEDERAL AND OR STATE LAWS?

$500,000.00

NEW ORLEANS, LOUISIANA, THIS_24_ DAY OF September 1992.

Sioned By Amelia B. Jol
FOREPERSON

j C-7

APPENDIX D

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LOUISIANA POWER & LIGHT CO.

versus CIVIL ACTION
FISCHBACH AND MOORE, INC., NO. 86-0594
FISCHBACH CORP.,

L. K. COMSTOCK, INC., SECTION: E/6
LKC, INC.

COMMONWEALTH ELECTRIC CO.

COMMONWEALTH COMPANIES, INC. FILED SEP 25
THE HOWARD P. FOLEY CO. 10 33 AM ‘92
JOHN D. KEYS

LEWIS E. EASTHAM

J. R. STURGILL, JR.

PAUL M. MURPHY
FRANCIS S. KELLSTROM

JUDGMENT

Considering the record, the answers by the jury to the interrogato-
ries propounded to it by the Court, the direction of the Court as to entry of
Judgment, and the law, for the reasons assigned,

IT IS ORDERED, ADJUDGED AND DECREED that there
be judgment in favor of plaintiff Louisiana Power & Light Co., and against
defendants Fischbach and Moore, Inc., Fischbach Corporation, Common-
wealth Electric Co., The Howard P. Foley Co., and Francis S. Kellstrom,
in the true sum of ONE MILLION FIVE HUNDRED THOUSAND(S
1,500,000.00) DOLLARS, with interest from the date of judgment, the
cost of suit, including a reasonable attorney’s fee;

D-1

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that there be judgment in favor of defendants L. K. Comstock, Inc., LKC,
Inc., Commonwealth Companies, Inc., John D. Keys, Lewis Z. Eastham,
J.R. Sturgill, Jr., and Paul M. Murphy, and against plaintiff, Louisiana
Power & Light Co., DISMISSING plaintiff's complaint at its cost.

Néw Orleans, Louisiana, this 25 day of September, 1992.

ee ii hiatal
United States District Judge

APPENDIX E

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LOUISIANA POWER & LIGHT COMPANY CIVIL ACTION

versus NO. 86-0594

FISCHBACH AND MOORE, INC., et al SECTION: E/3
FILED NOV 5
9 23 AM ‘92

tion:

RULINGS ON MOTIONS

These motions have been submitted to the Court for determina-

Motion of Fischbach and Moore, Inc., for judgment as a
matter of law;

Motion of Fischbach Corporation and Francis S. Kellstrom
for judgment as a matter of law, adopting motion of
Fischbach and Moore, Inc.;

Motion of Louisiana Power & Light Company for judg-
ment as a matter of law, or alternatively, for new trial
regarding prescription of state law claims;

Renewed Motion of Fischbach Corporation after trial for
judgment as a matter of law, and/or for new trial regard
ing corporate piercing issues;

Motion of L.K. Comstock, Inc., and LKC, Inc., to amend
judgment.

Motions 1 through 4 address themselves to the factual findings

E-1

made by the jury, except for the alternative new trial requests. Consider-
ing the motions, memoranda of counsel, the trial testimony and evidence
and the law, the Court is of the opinion that the jury had sufficient evi-
dence and was appropriately instructed on the law so as to enable it to
reach the findings it made. Further, considering the matter in toto, the
Court is of the opinion that the requests for a new trial are unwarranted.

Motion 5 seeks an amendment to the judgment awarding costs,
including reasonable attorney’s fees to L. K. Comstock, Inc., and LKC,
Inc. (“the Comstock defendants”), pursuant to Rule 68. Rule 68 states, in
pertinent part:

At any time more than 10 days before the trial begins, a party

defending against a claim may, serve upon the adverse party

an offer to allow judgment to be taken against the defending

party for the money or property or the effect specified in the

offer, with costs then accrued. ... If the judgment finally

obtained by the offeree is not more favorable than the offer,
the offeree must pay the costs incurred after the making of

the offer.

Rule 68, Federal Rules of Civil Procedure.

The Comstock defendants argue that since judgment was entered
in their favor and against the plaintiff, it should be awarded costs, includ-
ing attorneys’ fees, under this rule. The judgment which was entered in
favor of the Comstock defendants and against plaintiff Louisiana Power
and Light Company awarded defendants costs as a prevailing party in
accordance with Rule 54(d).

Upon reviewing the motion, memoranda of the parties, and the
law, the Court finds that the motion should be denied on two grounds.
The first is that the offer of judgment was not timely made in accordance
with the rule and applicable jurisprudence. Rule 68 explicitly requires

E-2

that the offer be served more than 10 days before the beginning of trial.
Excluding weekends, which is required by Polk v. Montgomery County,
Maryland, 130 F.R.D. 40, 42 (D. Md.199) and two days of jury selection,
which is required by Greenwood v, Stevenson, 88 F.R.D. 225 (D.R.I. 1980),
the offer was one day late. The offer was filed and served on July 22,
1992 and opening statement began on August 5, 1992. To have been
served more than 10 days before the trial began, the offer would have had
to be served by July 21, 1992. Thus, the offer was untimely.

The second basis for denial of the motion is the holding of the
Supreme Court in Delta Air Lines, Inc. v. August, 450 U.S. 346, 101
S.Ct. 1146 (1981). The Court there found that “it is clear that [Rule 68]
applies only to offers made by the defendant and only to judgments ob-
tained by the plaintiff’ and that it was inapplicable when it is the defen-
dant who obtains judgment in its favor. 450 U.S. at 352, 101 S.Ct. at
1150. Since here the Comstock defendants obtained judgment in their
favor, under the Delta Air Lines decision, the rule does not apply. The
defendants’ attempts to distinguish this decision amount to a distinction
with no difference.

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that motions 1, 2, 3, 4, and 5 be and are hereby
DENIED.

New Orleans, Louisiana, November 4, 1992.

—
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2025%3A1. Public record. Not legal advice.