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20 ELR 20921 | Environmental Law Reporter | copyright © 1990 | All rights reserved General Electric Co. v. Litton Business Systems, Inc.No. 87-3333-CV-S-4 (W.D. Mo. October 24, 1989)The court awards a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) plaintiff pre- and postfiling attorneys fees, expenses, and prejudgment interest. The court holds that attorneys fees are properly recoverable by CERCLA plaintiffs as response costs. The court finds that the plaintiff submitted a reasonable itemization of attorneys fees and costs incurred in a complex CERCLA litigation. The court also finds that the plaintiff submitted a reasonable request for services performed prior to the filing of this suit, involving administrative proceedings before state administrative agencies. The court holds that the "costs of response" recoverable under CERCLA § 107(a)(4)(B) include enforcement activities related to removal or remedial action, including pre-filing attorneys fees. The court also approves expenses incurred before and after filing suit for air courier, computer research, depositions, facsimile transmissions, and long-distance telephone calls. Finally, the court grants plaintiff's request for pre-judgment interest on the attorneys fees and expense awards, calculated to accrue from the date the plaintiff made written demand for its response costs. Counsel for Plaintiff Counsel for Defendant Clark, J.: Before the Court is plaintiff's application for attorneys' fees, expenses and prejudgment interest. Plaintiff's application will be granted as set forth below. On June 20, 1989, the Court entered an order in the above-captioned case stating that upon a determination of the amount of attorneys' fees and costs plaintiff is entitled to recover, judgment would be entered in favor of plaintiff. General Electric Co. v. Litton Business Systems, Inc., 715 F. Supp. 949, 964 [19 ELR 21433] (W.D. Mo. 1989). The Court gave plaintiff thirty days to submit an itemization of attorneys' fees and costs incurred by plaintiff after June 19, 1987. Id. Plaintiff has submitted such an itemization requesting attorneys' fees and expenses, plus interest, both prior and subsequent to the filing of this suit on June 19, 1987. Plaintiff argues that it is entitled to attorney's fees for services performed subsequent to the filing of suit pursuant to 42 U.S.C. § 9607(a)(4)(B), or, in the alternative, pursuant to Fed. R. Civ. P. 11 and 37(c). This Court has previously determined that attorney's fees are recoverable by the United States government in a cost recovery action. United States v. Northeastern Pharmaceutical and Chemical Co., Inc., 579 F. Supp. 823, 851-52 [14 ELR 20212] (W.D. Mo. 1984), aff'd in part, 810 F.2d 726 [17 ELR 20603] (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987). Defendant responds that attorneys' fees are not recoverable pursuant to 42 U.S.C. § 9607(a)(4)(B) in a private cost recovery action under CERCLA. The Court has previously determined that attorneys' fees are properly recoverable by plaintiff as response costs. General Electric Co., 715 F. Supp. at 958-59. Plaintiff seeks to recover $269,475.57 in attorneys' fees for services performed subsequent to the filing of suit. In determining the proper amount of reasonable attorneys' fees the Court must consider the twelve factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), that have been adopted and expressly followed by the Eighth Circuit. E.g., Hardman v. Board of Education of Dollarway, Arkansas School District, 714 F.2d 823, 825 (8th Cir. 1983). The Court must determine if the number of hours claimed and the hourly rate charged are reasonable. Plaintiff requests attorneys' fees for 2,663.03 hours expended by partners, associates, of counsel attorneys, legal assistants, law clerks, and librarians. See Plaintiff's Verified Application for Attorneys' Fees, Expenses, and Prejudgment Interest ("Plaintiff's Application") at Exhibits C, D. The Court finds that the hours listed by plaintiff are reasonable for a complex CERCLA case where the Court has previously acknowledged that "extensive discovery occurred, that defendants did not stipulate until the time of trial as to the successorship of the Litton corporations, and just weeks before trial, defendants informed the Court of their intentions to raise several issues which ultimately were not allowed at trial." General Electric Co., Order of August 7, 1989, at 3; see Plaintiff's Application at Exhibits F, G, H. Therefore, the Court will approve the 2,663.03 hours listed by plaintiff as reasonable. The hourly rates claimed by plaintiff vary from $25 per hour for an assistant librarian to $195 per hour for a partner. Id. at Exhibit E. The Court finds that the hourly rates charged for partners George P. Coughlin, John J. Yates and Paul Scott Kelly, Jr., for 1989 are excessive. Mr. Coughlin was billed at $143 per hour, Mr. Yates at $150 per hour and Mr. Kelly at $195 per hour. Id. The Court will approve an hourly rate of $135 for these three partners. The Court finds that the hourly rates charged for the remaining persons for this complex CERCLA cases are reasonable for the Springfield, Missouri, area. See id. at Exhibits D, E. Therefore, the Court will approve the hourly rates as modified above as reasonable. As a result, the Court will award plaintiff attorneys' fees in the amount of $269,406.52 for services performed subsequent to the filing of suit. Plaintiff seeks $42,536.80 in attorneys' fees for services performed prior to the filing of this suit on June 19, 1987, in connection with the administrative proceedings before the Missouri Department of Natural Resources and legal advice to guide the site cleanup. The Court has previously acknowledged that plaintiff incurred such attorneys' fees. General Electric Co., 715 F. Supp. at 955. Once liability has been established under CERCLA, a covered person "shall be liable for . . . any other necessary costs of response incurred by any other person consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B). "Response" is defined as "removal, remedy, and remedial action, all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto." Id. § 9601(25) (emphasis added). Thus, the "costs of response" recoverable under 42 U.S.C. § 9607(a)(4)(B) include enforcement activities related to removal or remedial action, [20 ELR 20922] which would allow recovery of a pre-filing attorneys' fees as enforcement activities related to removal or remedial action. See BCW Associates, Ltd. v. Occidental Chemical Corp., No. 86-5947, slip op. at 55 n.4 (E.D. Pa. Sept. 24, 1988) (WESTLAW, DCT database); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437, 1452 [15 ELR 20151] (S.D. Fla. 1984). Because of the complexity of site evaluation and cleanup under CERCLA, substantial attorneys' fees may be incurred prior to the actual filing of a CERCLA cost recovery action. "Congress has determined that the persons who bore the fruits of hazardous waste disposal also bear the costs of cleaning it up." Northeastern Pharmaceutical, 579 F. Supp. at 848. Such costs include attorneys' fees prior to the filing of a lawsuit. Because the Court is "obligated to construe [CERCLA's] provisions liberally to avoid frustration of the beneficial legislative purposes," Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 [17 ELR 20223] (1st Cir. 1986) (citations omitted), the Court finds that plaintiff is entitled to recover pre-filing attorneys' fees. Plaintiff seeks to recover $42,536.80 in attorneys' fees for services performed prior to the filing of suit. Plaintiff requests attorneys' fees for 415.26 hours expended by partners, associates, of counsel attorneys and librarians. Plaintiff's Application at Exhibits K, L. The Court finds that the hours listed by plaintiff are reasonable for complex pre-litigation CERCLA activities. See id. at Exhibits O, P. Therefore, the Court will approve the 415.26 hours listed by plaintiff as reasonable. The hourly rates claimed by plaintiff vary from $25 for an assistant librarian to $165 per hour for a partner. Id. at Exhibit M. The Court finds that the hourly rate of $165 charged for Mr. Kelly is excessive. The Court will once again approve an hourly rate of $135 for Mr. Kelly. Mr. Kelly billed.5 hours at $165 per hour for a total bill of $82.50. Id. at Exhibits L, M. At a rate of $135 per hour the bill would be $67.50, resulting in a $15 reduction of plaintiff's attorneys' fee claim. The Court finds that the hourly rates charged for the remaining persons for the complex pre-litigation CERCLA activities are reasonable for the Springfield, Missouri, area. See id. at Exhibit M. Therefore, the Court will approve the hourly rates as modified above as reasonable. As a result, the Court will award plaintiff attorneys' fees in the amount of $42,521.80 for services rendered prior to the filing of suit. Plaintiff seeks $75,974.09 in expenses incurred subsequent to the filing of suit. Id. at Exhibit S. The request includes expenses for air courier, computer research, depositions, facsimile transmissions, long distance telephone calls, photographs, exhibit preparation, photocopies, postage, travel, witness fees and other miscellaneous expenses. Id. The Court finds such expenses are reasonable for a complex CERCLA case. As the Court has previously determined that plaintiff is entitled to recover post-filing attorneys' fees, the Court will allow plaintiff to recover expenses in the amount of $75,974.09 for expenses incurred subsequent to the filing of suit. Plaintiff seeks $4,201.32 in expenses incurred prior to the filing of suit. Id. at Exhibit T. The request includes expenses for air courier, computer research, long distance telephone calls, photocopies, postage, travel and other miscellaneous expenses. Id. The Court finds such expenses are reasonable for complex activities. Once again, as the Court has previously determined that plaintiff is entitled to recover pre-filing attorneys' fees, the Court will allow plaintiff to recover expenses in the amount of $4,201.32 for expenses incurred prior the filing of suit. Previously, this Court awarded plaintiff prejudgment interest on response costs. General Electric Co., 715 F. Supp. at 963. As the Court has defined "response costs" to include attorneys' fees and expenses previously in this order, the Court will award plaintiff prejudgment interest on attorneys' fees and expenses. The Court has awarded plaintiff attorneys' fees totaling $311,928.32 and expenses totaling $80,175.41. Under CERCLA prejudgment interest accrues "from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned." 42 U.S.C. § 9607(a). As a result, the Court disagrees with plaintiff's prejudgment interest calculations regarding pre-filing attorneys' fees and expense payments by plaintiff. See Plaintiff's Application at Exhibits U, V. Plaintiff calculates prejudgment interest from the date payment was made by plaintiff. Plaintiff made written demand for previously incurred response costs, which includes attorneys' fees and expenses, when this action was filed on June 19, 1987. Therefore, this date is later than "the date of the expenditure concerned" regarding pre-filing payments of attorneys' fees and expenses by plaintiff and, pursuant to 42 U.S.C. § 9607(a), is the controlling date for calculation of prejudgment interest on these amounts. Plaintiff's prejudgment interest calculations regarding post-filing attorneys' fees and expense payments are correct, as the later date is "the date of the expenditure concerned." Accordingly, plaintiff will be awarded $27,361.22 in prejudgment interest on attorneys' fees and expenses for a total attorneys' fees and expenses award of $419,464.95. This Court previously determined that judgment would be entered in favor of plaintiff against defendant upon a determination of the amount of attorneys' fees and costs which plaintiff is entitled to recover. General Electric Co., 715 F. Supp. at 964. Plaintiff incurred $940,843.23 in response costs, excluding attorneys' fees and expenses. Judgment will now be entered accordingly. Id. at 963. In addition, plaintiff will be awarded prejudgment interest in the amount of $161,945.65 for a total award of $1,102,788.88 excluding attorneys' fees and expenses. ORDERED that plaintiff's verified application for attorneys' fees, expenses and prejudgment interest is granted as set forth in this order; and it is further ORDERED that plaintiff is awarded $419,464.95 in attorneys' fees, and expenses, including prejudgment interest; and it is further ORDERED that judgment be entered in favor of plaintiff for response costs including prejudgment interest totaling $1,102,788.88 for a total judgment in the amount of $1,522,253.83. 20 ELR 20921 | Environmental Law Reporter | copyright © 1990 | All rights reserved |