USCA1 Opinion

May 12, 1995

[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 94-2057
GEORGE C. WILLIAMS, ET AL.,
Plaintiffs, Appellants,
v.
RICHARD E. POULOS, ET AL.,
Defendants, Appellees.
No. 94-2058
GEORGE C. WILLIAMS, ET AL.
Plaintiffs, Appellees,
v.
RICHARD E. POULOS, ET AL.,
Defendants, Appellants.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________

and Stahl, Circuit Judge.

_____________
____________________

Allen S. Rugg, with whom Alan D. Strasser, Kutak Rock, John

______________
________________
__________
____
Whitman, and Richardson & Troubh, were on brief for appellants.
_______
___________________
Terry A. Fralich, with whom Peter J. DeTroy, and Norman, Hanso
_________________
_______________
_____________
DeTroy, were on brief for appellees.
______
____________________
____________________

STAHL,
STAHL,
substantial
wiretapping
Stat.

Circuit Judge.
Circuit Judge.
_____________

relief

in

their

Appellants

now

alleging

illegal

2511(1) and Me. Rev.

710(1), the district court, pursuant to

the statutory schemes, ordered

fees and

appellants obtained

lawsuit

in violation of 18 U.S.C.

Ann. tit. 15

attorney

After

expenses

argue that

appellees to pay
in the

the

amount of

district

appellants'
$283,950.58.

court abused

its

discretion

in

maintain in
occurred

in

awarding

as

little

as

their cross-appeal that the

awarding appellants

careful review of

it

did;

abuse of discretion

anything

at

all.

the record, we conclude that

court's basic approach

appellees

is sound but that

After

the district

on certain matters

it failed to provide a sufficient basis to justify certain of

its deductions and made

computational errors; thus we modify

the district court order accordingly.

I.
I.
__
BACKGROUND
BACKGROUND
__________
We

have previously

background to the
v.

Poulos,
______

recited in detail

the factual

underlying, substantive lawsuit,

11 F.3d

271

(1st

Cir.

1993) (the

Williams
________
"Williams"

lawsuit), and we therefore provide only a brief summary here.

Appellants
defendants

(plaintiffs
in a

Consolidated Auto

in

the

RICO lawsuit

Williams

stemming from

Recyclers, Inc. ("CAR"),

lawsuit)
the demise

were
of

Bowers v. Allied
______
______

Capital Corp., Civ. No. 91-0021-B (D. Me. filed January 1991)
_____________

-22

(Brody,

J.)

discovery
Richard

(the

in the Bowers

that

conversations.
the Williams
injunctive

he

In

the

course

of

for

had

CAR's principals

secret

tapes

of

(the
some

Bowers
of their

After further discovery, appellants initiated

lawsuit, seeking,

relief, under

forbidding Poulos

inter alia,
_____ ____

federal

and the

and

Maine wiretap

requested

laws,

using the

On February 3, 1993, following

trial, the district

appellants'

declaratory and

Bowers plaintiffs from

in the Bowers lawsuit.

a six-day bench
part

lawsuit).

litigation, appellants learned from

Poulos, counsel

plaintiffs)

tapes

"Bowers"

court granted in

relief,

and

we

large

affirmed.

Williams, 11 F.3d at 274.

________
Appellants then filed
fees with
Maine

the district

wiretap

recovery

statutes,

of

reasonable

an application for

court, pursuant
both

of

which

attorney

fees

defendants in successful civil actions.

(b)(1);

Me.

Rev.

application, as
and costs.1

Stat.

to the

Ann.

tit.

for

costs

18 U.S.C.
15,

federal and

provide
and

attorney

the
from

2520(a)-

711(2).

The

amended, sought $715,202.12 in attorney fees

In its

Order and Memorandum

of Opinion

dated

____________________
1. Appellants' initial application for fees and expenses on
January 13, 1994, requested a total of $734,389.62. After
appellees filed a memorandum with the district court opposing
the application, appellants filed an amended application (the
Application), deducting $6,600 in computer research charges,
$2,125 in telephone surcharges, and $10,462.50 in charges for
attorney travel time, reducing the total amount requested to
$715,202.12.
This amended figure comprised approximately
$616,349 in attorney fees and $78,253 in expenses from the
-33

September

2,

Application
inflated"

1994,
was

and

that

it
of

resources."

$283,950.58

district

"unreasonable

numerous instances
firms'

the

on

contained
inefficient

The district

-- about

40%

of the

court
its

stated
face

"exorbitant
allocation
court
amount

that

and

grossly

costs
of

the

and

the

law

awarded appellants
requested.2

The

court arrived at this figure in the following manner:

(1) In

calculating

rendered by Kutak Rock,

rather

than

Appellants,

the

reasonable fees

services

the court used local billing

Washington,

in defense

for

of

D.C.,

this request,

rates

rates,

requested.

claim they

could

locate no
Poulos,

available, qualified local counsel

and therefore

reasonable.

The court,

Kutak Rock's

willing to sue

out-of-town rates

were

however, found that appellants chose

____________________
three law firms that represented appellants, with expert fees
and court reporter costs accounting for the balance.
The
lion's share of the fees and expenses -- approximately
$491,749 in fees and $59,589 in expenses -- requested in the
Application were billed by Kutak Rock, the Washington, D.C.,
law firm that served as appellants' lead counsel.
The
Application
includes
fees
and
expenses
totalling
approximately
$96,777 billed
by Richardson
& Troubh,
appellants' Maine counsel, and approximately $46,463 billed
by Murray, Plumb & Murray, counsel for Ralph Dyer, intervenor
in the Williams lawsuit.
Dyer did not appeal from the
district court's order awarding reduced fees.
However,
because the district court
based its decision on the
propriety of the entire Application, and because appellees
contend that the entire Application should be denied, we
consider the fees and expenses billed by Dyer's counsel in
our analysis.
2. The total award comprised $246,741.58
and $37,209 in costs.

in attorney

fees

-44

Kutak
Rock

Rock as lead counsel in the wiretap case because Kutak

already

represented

them

in

the

underlying

Bowers

lawsuit.

This

adjustment

resulted

in

reduction

of

approximately $159,000.
(2) The court found that appellants had overstaffed
the case, stating that it had "found numerous
Plaintiffs' counsel

duplicated efforts"

and offering

example bills from three lawyers for time

for and

attending Poulos's deposition.

such duplicative

billing reflected bad

an additional $100,000

occasions when
as an

spent in preparing
The court found that
faith and subtracted

to correct for overstaffing and

as a

penalty for appellants' bad faith request.

(3)

On its

own, the

court calculated

travel expenses from Washington,

cut $8,524
allow

D.C., to Bangor, Maine, and

from appellants' request.

reimbursement for

meal expenses

It

also declined

the inherent

cost of coordinating

law

allowed just

$11,000

of

to

altogether ($1,245),

and, citing
firms,

reasonable

work between

$34,088 in

requested

photocopy charges and $6,000 of $16,312 in requested postage,

telephone and

fax charges.

These cuts

reduced appellants'

requested expense award by a total of $43,169.

(4) Noting

that appellants had agreed

reimbursement for attorney travel time and

charges,

the court

subtracted

total.

-55

not to seek

computer research

$13,575 from

the

requested

(5)

Finally,

apparently to

called a "misallocation of
it would

divide the

into three

correct

for

what it

resources," the court stated that

tasks performed by

categories and,

appellants' lawyers

in accordance with

the relative

expertise demanded by each task, allow compensation for those

services

at 50%, 75% or

Stating that it

100% of each

lawyer's local rate.3

had "determined to the extent possible based

on the information made available by counsel,

fall

within

each

category

for

each

how many hours

lawyer,"

the

court

subtracted an additional $115,000 from the requested fee.

Appellants argue that the method the district court
used to arrive at a reasonable fee was not in accordance with
applicable

law

and

explanations for the

that the

court

provided

cuts that it made.

insufficient

Appellees maintain

that, because the district court found, inter alia,

_____ ____
fee

request

inflated"

and

was

"unreasonable

at

least

therefore had no discretion

request in its entirety.
____________________

in part

on

its

face

reflected

and
bad

to do anything but deny

that the
grossly
faith, it
the fee

3. Services compensated at 50% included:

"conferences with
co-counsel and opponents; proofreading
and copyreading;
notification and preparation for depositions; review of
documents; telephone conversations."
Services compensated at 75% included:
"general
research; taking and
attendance at depositions; letter
drafting; drafting and reading of memoranda; preparation for
hearings and court conferences; discovery activity."
Services compensated at 100%
included: "court
appearances, in-chambers conferences, and the preparation and
drafting of motions and briefs."
-66

II.
II.
___
DISCUSSION
DISCUSSION
__________
A. Standard of Review
______________________
We review a district
of law or abuse of discretion.
934, 937 (1st Cir.
calculating
tribunal

1992).

a reasonable

"lacks the

means

court's fee award for mistake

Lipsett v. Blanco, 975
_______
______

A district court's
fee

is

discretion in

particularly broad;

to replicate

F.2d

the trial

this

court's

first-hand knowledge

of

the litigation

and

its

nuances."

Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991).

_____
______________
Our
require that
supply

however, is

the trial

a `clear

award.'"
F.2d

review,

not

without

court "make concrete

explanation

of

its

bite.

We

findings [and]

reasons for

the

fee

United States v.
______________

Metropolitan Dist. Comm'n, 847

__________________________

12, 16 (1st Cir. 1988)

(omitting internal citation and

quoting Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st
___________________
______
Cir. 1984)).

While

these demands should not be so

to cause a district court to

generated

minutiae,"

substantial reductions

id.,
___

"drown in a rising tide of feewe

in a

do

expect

Comm'n,
______

488, 493 (1st Cir. 1993)

847 F.2d at 18).

prevailing party's

"to spell out the whys and wherefores."

3 F.3d

great as

court

making

fee request

Brewster v. Dukakis,
________
_______

(quoting Metropolitan Dist.

__________________

Otherwise, judicial review is next

to impossible.

-77

Even when we cannot

however,

we

findings.

need

"A

559, 562 (1st

remand

for

litigation."

(1983)).

more

Jacobs v. Mancuso,
______
_______

When the

detailed

should not result

Cir. 1987) (quoting Hensley

_______

424, 437

ample

always

request for attorney's fees

in a second major

U.S.

not

affirm an attorney fees award,

825 F.2d

v. Eckerhart, 461
_________

record provides

us with

resources, then, "much as we dislike the task that has

been put upon us," id., we may set forth our own findings and
___
amend

the award accordingly.

see, e.g.,
___ ____

id.; Rogers v.
___ ______

1987); Hart
____

v.

Bourque,
_______

We have done

Okin, 821 F.2d

____
798

F.2d

519

so in the past,
22, 31 (1st

(1st

Cir.

Cir.
1986);

Grendel's Den, 749 F.2d at 951, and we do so here.

_____________
B. The District Court's Methodology
____________________________________
Appellants argue
its

failure to

reasonable

fee.

use

that the district court

the lodestar
Where

the

framework to

applicable

erred in

determine a

statutory

prescribes no alternative method, "we have customarily

it

best to calculate fees

and-rate-method

. . . ."

by means of

scheme
found

the [lodestar] time-

Tennessee Gas Pipeline Co. v. 104

___________________________
___

Acres of Land,
______________
Weinberger
__________

32 F.3d

632, 634

(1st Cir.

1994) (quoting

v. Great N. Nekoosa Corp., 925 F.2d 518, 526 (1st

______________________

Cir. 1991) (alterations in Tennesee Gas)).

____________

A court employing

this

hours

method

expended on
arrive at the

multiplies

the

number

the litigation by

of

a reasonable

lodestar figure.

reasonably

hourly rate

Hensley, 461
_______

U.S. at

to
433;

-88

Metropolitan Dist. Comm'n, 847 F.2d

__________________________

at 15.

To determine a

reasonable number of hours, a court may begin with the number

of hours actually
________

spent and then subtract

duplicative,

unproductive,

excessive,

unnecessary."

Metropolitan Dist. Comm'n,

__________________________

(quoting Grendel's Den, 749 F.2d at 950).

_____________
essentially what the district

court did.

"hours which were

or

otherwise

847 F.2d

at 15.

This is, in fact,

It began

with the

total

number of

litigation,

hours

and made

appellants' attorneys
deductions for

and unnecessary billing.

an

unorthodox manner

hours -- this

duplicative, excessive

deducting lump

was in large part

each task billed

sums, rather

specify the amount

and to

have

never

of time spent

summarize the hours

lockstep,
approach in

required

following

that

an

district

unyielding,

all fee award

cases."

the

number

Tennessee Gas, 32
______________
Comm'n, 847
______

of

F.3d at

F.2d at

15.).

spent by

on
each

In any event,

judges

"march

essentially

Id.
___

left reasonably open the question of

ascertains

than

undoubtedly necessitated by

attorney on different parts of the litigation.

we

the

While it performed this exercise in

--

appellants' failure to

spent on

In fact,

in

wooden
we "have

precisely how the judge

hours

reasonably

634 (quoting
While we

expended."

Metropolitan Dist.
__________________

take issue

with some

aspects of the manner in which the district court implemented

its

methodology,

we

find

no

methodology per se.

-99

error

in

its

choice

of

C. Use of Local Rates

______________________
Appellants
meaningful

relief

maintain
from

that,

appellees'

in

order

illegal

to

obtain

wiretapping,

exigent circumstances left them with no choice but to

assign

the lion's share of the wiretap litigation to its Washington,

D.C., counsel,

Kutak Rock.

Bowers litigation,
appellants claim,
for new

Berman & Simmons, refused

forcing them to begin

local counsel.

taking

in other

to take the

litigation

thirty lawyers,

prevented

Whitman, of

case, but whose

him

from

over the primary role in the Williams lawsuit.

appellants claim,

the

to sue Poulos,

Maine lawyer -- John

& Troubh -- willing

involvement

firm in

an expensive search

After interviewing

appellants finally found a

Richardson

Appellants' local

because they were unable

ever
Thus,

to find suitable

local counsel, their decision to use Kutak Rock

was entirely

reasonable,

in

and

reimbursement for

the

district

court

Kutak Rock's services

erred

limiting

to prevailing Maine

rates.
In general, "the proper

rate to apply to

the work

of out-of-town counsel is that of the forum community, rather

than

that which

the attorney

which she practices."

Wolf,

charges in

the community

Mary Frances Derfner

Court Awarded Attorney Fees

___________________________

16.03[8]

in

& Arthur

D.

(1994);

see
___

Maceira
_______

v.

reasonable

Pagan, 698
_____
hourly

F.2d 38,

rate

is

40

(1st Cir.

usually

stated

1983) ("The
to

be

`that

-1010

prevailing
Copeland
________
banc))).

in

the community

for

similar

v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980) (en

________
Nevertheless, out-of-town rates may

the complexities of a
expertise of non-local

within the forum

counsel, Maceira, 698 F.2d

_______

community are not

2 Derfner & Wolf

one

that

prosecute,

no

capable

it did

not

at 40, or
__

capable attorneys

willing to prosecute

or

16.03[8] (1994) (citing cases).

While the district court, in its

might have found that

be applied if

particular case require the particular

_______

"when the case is an undesirable one which

defend,"

work.'" (quoting

sound discretion,

appellants' lawsuit against Poulos was

attorney
do

so.

in

Maine

was

Instead,

it

willing
found

to
that

appellants were using Kutak Rock in the Williams suit because

it

already

represented

them

in

litigation.

The same

district

lawsuits, and

his familiarity

the

underlying

judge

Bowers

presided over

with the litigants

both

and their

counsel, and with the willingness of the local bar to sue one
another, far exceeds ours.
judgment;

nothing

This was not a ruling on

required

the

district

appellants'

self-serving explanations as

he believed

that appellants' difficulty in

local

counsel

retention
with

was

of Kutak

the case

far

Rock than

and its

logical conclusion

less

client:

true.

factor

was Kutak
this

judge

summary
to

take

Apparently,

finding suitable
motivating

their

Rock's familiarity
is both

and a finding supportable

an entirely

on the record,

-1111

given that

two local law

firms did in
___

fact join

the fight

against Poulos and the other appellees.

Therefore, we do not

fault the

use prevailing local

district court's decision to

rates in determining a reasonable fee.

That said,

the district

court's calculation of

reasonable local hourly rate contains a mathematical error of

some

consequence.4

court

To arrive

at this

rate,

the district

divided what it thought was the total requested fee of

Kutak Rock --

$569,775.24 --

by the total

number of

hours

Kutak Rock billed -- 2,867 -- to arrive at a weighted average

________
billing
actual
______

rate for all Kutak

average

Rock employees of

billing rate

of

all

$198.11.

Kutak Rock

The

employees

(i.e., the sum of their hourly rates divided by the number of

employees

who billed) was $131.82.

weighted
actual

average

was

approximately

average, reflecting

the bulk
to each

of the hours.

The court noted that the

50% greater

that higher-paid

than

the

lawyers billed

It then assigned a local hourly rate

Kutak Rock employee (roughly equivalent to the rates

commanded

by

the

two

local

firms

on

the

application),

computed their average -- $95.45 -- and increased this figure

by

50% to

Finally, it

arrive at

a weighted

local average

multiplied this latter figure by

of $143.10.

2,867 hours to

____________________
4. To their credit, appellants directed our attention to
this error, even though correcting it results in a lower
local hourly rate.
-1212

arrive at an

adjusted local

fee request for

Kutak Rock

of

$410,267.70.
In

fact, the

$569,775.24

figure with

which

the

district court began included $68,014 in expenses and did not

reflect

the

Application.
fee

adjustments

Kutak Rock's portion of

request was

hours

appellants made

actually $491,749,

were 2,818.

Using these

in

their amended

the adjusted attorney

and its

total adjusted

figures, and

employing the

district court's methodology, the adjusted local

fee request

for Kutak Rock is $356,054.5

D.
Reductions for Duplicative Billing and Misallocation of
_____________________________________________________________
Resources
_________
In deducting $100,000 to compensate for duplicative
billing

and

to

penalize

appellants

for

requesting such compensation, the district

it had

"found

numerous occasions

duplicated efforts."

bad

faith

in

court stated that

when Plaintiffs'

counsel

It provided only one example:

bills by

three lawyers for time

spent in preparing for and

attending

Poulos's deposition.6

Appellants argue that, because Poulos

____________________
5.

We arrived at this result as follows:

1) $491,749
2,818 = $174.50
(weighted average rate)
2) $95.45 x ($174.50/$131.82) =
$126.35
3)
$126.35
x
2,818
=
$356,054.30

6. In fact, the Application includes billing

five lawyers
who attended at least
part
____
deposition:
two from Kutak Rock, one from

entries from
of Poulos's
Richardson &

-1313

was the most important deponent in the case, their deployment

of lawyers

in

the taking

reasonable, and,
possibly

of

his deposition

moreover, that this

sustain a finding of

was

entirely

single example

bad faith and

cannot

a deduction of

$100,000.
Assuming for the moment
to

deposition

that sending three lawyers

constitutes overstaffing,

appellants that this single

court's reference to

we

agree

with

example, along with the district

other, unspecified "numerous occasions"

of similar overstaffing, do not constitute a sufficient basis

for

finding

deduction

of

of bad

faith

$100,000.

and

Our

own

application, however, persuades us

concerns were not

combined penalty
scrutiny

the

fee

that the district court's

entirely unjustified.

Poulos deposition, for example,

of

and

In

addition to the

two, three or four attorneys

attended depositions on May 27-29 and June 11-12, 1992.

Four

attorneys

from

--

Richardson
billed

two

partners

& Troubh and one

time

for

from

Rock,

from Murray, Plumb

attendance at

hearing on June 29, 1992.

Kutak

the

one

& Murray --

preliminary injunction

Four lawyers attended -- and,

we

assume, participated in -- the trial.

We do

not mean to underestimate

key depositions or
the

possible value

hearings in the course

of

employing more

the importance of
of litigation, or

than

one lawyer

at

____________________
Troubh, and two from Murray, Plumb & Murray.
-1414

trial.

Nor

do we question

the appellants' contention

that

this was particularly hard-fought litigation,

raising many
not,

time-consuming, frivolous arguments.

however,

complex

antitrust

Fortune 500 companies.

of

with appellees

a fee request, a

litigation

This was

between

two

And, in assessing the reasonableness

court should "ordinarily

greet a claim

that several lawyers were required to perform a single set of

tasks with healthy skepticism."
934,

938 (1st

demands
work

Cir. 1992).

partners,

so great as
and occasional

partners and

associates, from

and that this

strike force of

efficiently

--

apparently

court.

Thus, giving due

general

sense

scrutinized
indicated

that the

the fee

the

district

to warrant extensive
work by

additional
firms --

lawyers always divided

did not

persuade

deference to the
case

was

and

district

district court's
having

and concluded

-- that there

effort, we will
order

the

tasks

overstaffed, and

request ourselves

court's

that the

three different law

by the above examples

some duplication of

Blanco, 975 F.2d

______

Appellants' arguments

of this case were

by four

Lipsett v.
_______

-- as

was at least

modify this portion

deduct

$40,000

of
for

overstaffing.
The

district court's

for misallocating
specific

examples

decision to

resources suffers
as

well

as

an

deduct $115,000

from a similar
analytical

lack of

flaw.

The

principle that legal work demanding differing levels of skill

-1515

and

expertise

may

established.

be

compensated

differently

is

firmly

See, e.g., Jacobs 825 F.2d at 561 n.3 ("Within

___ ____ ______

reason, the court may

establish . . . multiple

hourly rates

to reflect differences in the types of services performed for

the client.").

Here, however,

have

twice
_____

deducted

calculating
district
Kutak

the

this

overall

fee

court calculated

Rock's attorneys

corrected

associates

the
and

appropriately
work

fact

the

that

performed by
falls

compensated categories

for Kutak

Rock's

weighted average

First,

in

work,

the

of all
___

of

per hour, which

This calculation,

paralegals.

that

differential.

at $143.10

to $126.35.

accounts for

i.e.,

for

the district court appears to

some

we have

however, already

work

was

performed

by

Work that

was

actually

and

employees

--

these

into the

lower-paid
district

-- should not

court's

then be

subject to

further deduction of 25% or 50% of their billing rates.

_____
the

district court stated

that it

arrived at

lowera

Yet,

its $115,000

deduction after "determin[ing]

to the extent

on the information made available by

fall

within

reduc[ing]

each

category

that

[tripartite]

lawyer's

framework."

possible based

counsel, how many hours

for

each
____

lawyer"

local

rate

according

(emphasis

added).

and

"then
to

the

This

was

analytically incorrect.
As was the case
billing, however,

we think

with the deduction for duplicative

the

district court's

instincts

-1616

were

correct.

Of

the 3,734

hours billed,

accounted for approximately 80% of that total.

partners' time
This would at

least place a court on notice that close scrutiny of resource

deployment was necessary.

The manner in which the bills were

presented, however, made such scrutiny

An

entry

for a

includes several

lawyer's work

on

different tasks,

reflecting the total number

virtually impossible.

any given

day typically

but only a

single figure

of hours spent on the

case that

day.7

Thus,

the bills

provide no

indication of

how much

time was spent on each task, making it extremely difficult to

determine if the lawyers' time was allocated efficiently.
Appellants'
asked

for further

explanations,

them, are unavailing.

order for
submit

`a

plaints that,

had the

they

We have stated

could have

and

specific

supplied

previously that "[i]n

litigants to receive fee awards

full

district court

accounting

performed, the dates of performance, and the

. . . they [must]
of

the

tasks

number of hours

____________________
7. As an example, we cite the billing entry for Kutak Rock
partner Ronald Massumi for March 15, 1993, totalling 6.25
hours at a cost of $1,093.75:
Conference
with
Mr. Rugg
regarding
appellate procedure; telephone conference
with Mr. Murray's office; correspondence
to
Mr.
Whitman; research
regarding
injunctions pending appeal, federal rules
of civil and appellate procedure, 1st
Circuit
caselaw
on stays/injunctions
pending
appeal,
notice
of
appeal
procedure; draft motion for injunction
pending appeal, and memorandum in support
of motion for injunction pending appeal.

-1717

spent on each task.'"

____

Tennessee Gas, 32 F.3d at 634 (quoting

_____________

Weinberger, 925 F.2d

__________
contain this level
fee-shifting

at 527).

The bills

of detail.

cases

in

specifically warned to
____________ ______

the

submitted do

Attorneys
District

not

preparing bills in

of

Maine

account for time spent

have

been

on each task.

Weinberger v. Great N. Nekoosa Corp., 801 F. Supp.

__________
_______________________

804, 816

n.21 (D. Me. 1992) (determining appropriate fee award despite

denying

request

future,

the Court admonishes

activities by the
activity"),

on other

grounds

stating that

counsel to

discrete amount

aff'd sub
_____ ___

and

separate different

of time

nom, BTZ, Inc.

___ __________

"[i]n

devoted to

each

v. Great N. Nekoosa
_________________

Corp., 47 F.3d 463 (1st Cir. 1995).

_____
It
absence of

has long been the

law of this

Court that "the

detailed contemporaneous time records,

________

extraordinary

circumstances,

will

call for

except in
substantial

reduction in any award or, in egregious cases, disallowance."

Tennessee Gas, 32 F.3d
______________
F.2d at

952).

at 634

Given the

Application, and the fact

for the vast majority of

significant

deficiencies in

the

that billing by partners accounted

hours -- giving rise at least

suspicion that resources might

is unprovable because of

(quoting Grendel's Den, 749

______________

to a

have been misallocated, which

the manner in which the

bills were

prepared

-- we do not think

unreasonable

and we

will

that a deduction of $115,000 is

not disturb

this portion

of the

district court's order.

-1818

E.
Deductions for Excessive Expenses, Travel Time and
_____________________________________________________________
Computer Time
_____________
We
deduction
The

will also

of about

district

leave

intact the

half of appellants'

court's

explanations

for

district

court's

requested expenses.
these

cuts

were

satisfactorily clear and reasonable.

The district court did, however, incorrectly deduct
$6,975 in travel time charges and $6,600 in computer research
costs.

Appellants' requested

total of

$715,202.12 already

reflected the removal of these costs, so they should not have

been

deducted a

second time.

We

will therefore

$13,575 to the award to correct for this error.

add back

F. Appellees' Cross-Appeal
___________________________
Appellees devoted virtually all
reply brief

to arguments

had no discretion
its entirety.
contention.
would

explaining why the

district court

to do anything but deny the fee request in

We will devote considerably less space to this

Even assuming arguendo that
________

have been within its

request

of their brief and

the district court

discretion if it

had denied the

entirely because of

the Application's deficiencies,

nonetheless we are extremely

hesitant to instruct the court,

after

hundreds of pages

it had sifted through

of bills and

decided to grant part of the request despite its deficiencies

and excesses, that

it had no discretion to do

so.

In Lewis
_____

v. Kendrick, 944 F.2d 949, 956 (1st Cir. 1991), we reversed a

________

-1919

district
$49,000

court

award

of

attorney

fees

of

approximately

and held that the plaintiff was entitled to nothing.

In that case, however, the district judge had retired, making

remand

to

the

trial

judge

impossible,

id.
___

at

954, the

plaintiff obtained minimal relief, and the requested fees and

costs

were approximately 140 times the

award, id. at
___

956.

purposefully

defied

requests.

Id.
___

We

held in that

the

caselaw

worth of the damages

case that counsel

regarding

attorney

This is not such an extreme case.

obtained substantially

all the relief that

had
fee

Appellants

they sought and,

while opinions may differ as to what is a "reasonable" fee in

this

case, we do not think that the record remotely supports

a finding of

overreaching and bad

faith in the

Application

sufficient to justify the denial of any award at all.

Nor do we find
we

should

further

remand to
contest

request;

allow

the

Appellants' award is
discovery

merit in appellees' contention that

them to

propriety

conduct
of

the

substantially less than

in this

case

would

discovery and
Application.
their original

simply be

another

example of litigious waste.

G. Recalculation
_________________
We
rulings.
the

now

recalculate

the

award in

light

The district court awarded $283,950.58.

of

We reduced

adjusted amount for Kutak Rock's fees by $54,213.70.

reduced the deduction

for duplicative billing

-20-

our

We

from $100,000

20

to $40,000 and

reinstated $13,575

in incorrect

deductions.

These adjustments result in a net increase in the total award

of

$19,361.30.

Thus,

the

total

award

for

appellants'

reasonable attorney fees and expenses is $303,311.88.

III.
III.
____
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the district court order
is
affirmed in part and modified in part. No costs.
affirmed in part and modified in part. No costs.
_________________________________________________

-2121