FSM SUPREME COURT TRIAL DIVISION

Cite as People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53 (Yap 2007)

[15 FSM Itnrm. 53]

THE PEOPLE OF THE MUNICIPALITIES OF RULL AND

GILMAN, YAP STATE, by and through CHIEF

ANDREW RUEPONG, CHIEF THOMAS FALGNIN

and CHIEF JAMES LIMAR,

Plaintiffs,

vs.

M/V KYOWA VIOLET (O.N. 15005-85-CH), its

engines, masts, bowsprit, boats, anchors, chains,

cable, rigging, apparel, furniture, and all other

necessaries thereunto pertaining;

In Rem Defendant,

KYOWA SHIPPING CO., LTD., PACIFIC LINE

TRADING INC. (PANAMA), and TORITEC CO. LTD.,

In Personam Defendants.

CIVIL ACTION NO. 2003-3002

ORDER AWARDING FEES AND COSTS

Dennis K. Yamase

Associate Justice

Decided: March 23, 2007

Entered: June 6, 2007

APPEARANCES:

For the Plaintiffs:        Daniel J. Berman, Esq.

                                   Berman O’Connor & Mann

                                   111 Chalan Santo Papa, Suite 503

                                    Hagatna, Guam   96910

[15 FSM Intrm 54]

                                   James P. Walsh, Esq. (pro hac vice)

                                   Davis Wright Tremaine LLP

                                   One Embarcadero Center, Suite 600

                                   San Francisco, CA   94111
 

For the Defendants:   David Ledger, Esq. (pro hac vice)

                                   Carlsmith Ball LLP

                                   134 West Soledad Avenue, Suite 401

                                   P.O. Box BF

                                   Hagatna, Guam   96932-5027

* * * *

HEADNOTES

Attorney’s Fees; Evidence ) Privileges

      When an attorney’s fee award has been requested, matters concerning attorney’s fees are generally not privileged and a blanket refusal to disclose to opposing counsel any supporting documentation showing the date, the work done, and the amount of time spent on each service for which a compensation claim was made, goes far beyond any possible assertion of attorney-client or work-product privilege. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 62 (Yap 2007).

Attorney’s Fees; Constitutional Law ) Due Process

      It is error and a due process violation for a trial court to award attorney’s fees without giving the opposing party (who will be paying the fee award) notice and an opportunity to challenge the proposed award’s reasonableness. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 62 (Yap 2007).

Attorney’s Fees

      The party seeking an attorney’s fees award always bears the burden of providing sufficient evidence to prove its claim. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 63 (Yap 2007).

Attorney’s Fees

      An appropriate fee consists of reasonable charges for reasonable services. Thus, to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client since this type of data, without more, does not provide the court with sufficient information as to their reasonableness ) a matter which cannot be determined on the basis of conjecture or conclusions of the attorney seeking the fees. Rather the fee request must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. Because of the importance of these factors, it is incumbent upon the requester to present detailed records maintained during the course of the litigation concerning facts and computations upon which the charges are predicated. Without itemization, a court will not approve any attorney fee claims. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 63 (Yap 2007).

Attorney’s Fees

      A summary of the total hours worked by the attorneys and their individual billing rates and a lawyer’s affidavit that the summary was correct, is inadequate to support an attorney fee award. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 63 (Yap 2007).

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Attorney’s Fees

      A client may contract with an attorney for specified legal services and commit itself to pay the amounts billed in accordance with the contract’s terms, but what the client has agreed to pay is not relevant to the court’s determination of a reasonable fee since the court makes its reasonableness determination without reference to any prior fee agreement between the attorney and client. This is because the entitlement to a reasonable attorneys’ fees award is that of the client, not of his attorney. The amount the client actually pays his attorney is irrelevant. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 63 (Yap 2007).

Attorney’s Fees; Civil Procedure ) Class Actions

      A class action fee award should not be based solely on a percentage of the recovery, since the court should consider several other factors in order to decide what is an appropriate fee. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 64 (Yap 2007).

Attorney’s Fees

      When the court is making its reasonableness determination for a plaintiffs’ attorney fee award, it must disregard the contingent fee agreement’s terms. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 64 (Yap 2007).

Attorney’s Fees; Constitutional Law ) Judicial Guidance Clause

      The court will give no weight to a contention that there was no contingent fee agreement in place because the fee agreement states that the clients are the Municipalities of Rull and Gilman and the plaintiff class is composed of Rull and Gilman residents when neither municipality is a corporate body or has an established municipal government and these municipalities exist as social constructs and when the court’s decisions must conform to Micronesia’s social configuration. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 64 n.3 (Yap 2007).

Attorney’s Fees

      Since any attorney’s fees award must be based upon a showing and a judicial finding that the amount of fees is reasonable, the court must require the submission of detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which a claim for compensation is made, so that the opposing party will have notice and an opportunity to challenge the reasonableness of the fee claim. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 64 (Yap 2007).

Attorney’s Fees

      In determining an attorney fee award’s reasonableness, the appellate division has considered two different, but similar sets of factors. One involving twelve factors, is drawn from civil rights caselaw, and the other, involving eight factors, is drawn from the FSM Model Rules of Professional Conduct Rule 1.5(a) and is thus used to determine whether a fee is unreasonable and unethical. The only real differences between these two tests is that the twelve-factor test includes consideration of the case’s undesirability and awards in similar cases and the eight-factor test makes consideration of whether the acceptance of the particular employment will preclude other employment by the lawyer dependent upon whether that preclusion was apparent to the client and limits the fee to the customary fee in the case’s locality. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 65 (Yap 2007).

Attorney’s Fees

      The twelve-factor attorney-fee test considers: 1)  the time and labor required; 2)  the novelty and difficulty of the questions; 3)  the skill requisite to perform the legal service properly; 4)  the preclusion of other employment by the attorney due to acceptance of the case; 5)  the customary fee; 6)  whether the fee is fixed or contingent; 7)  time limitations imposed by the client or the circumstances; 8)  the

[15 FSM Intrm 56]

amount involved and the results obtained; 9)  the attorneys’ experience, reputation, and ability; 10)  the case’s "undesirability"; 11)  the nature and length of the professional relationship with the client; and 12)  awards in similar cases. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 65 (Yap 2007).

Attorney’s Fees

      The whether-the-fee-is-fixed-or-contingent factor in the twelve-factor and eight-factor tests, does not contradict the court’s statement that a reasonable attorney fee award is determined without reference to any fee agreement’s terms because this factor considers the risk the attorney undertook that he might not have a fee to collect ) that is, whether the fee was contingent ) not what the actual terms of the (contingent or fixed) agreement were. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 65 n.4 (Yap 2007).

Attorney’s Fees

      The eight-factor attorney-fee test considers: 1)  the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2)  the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3)  the fee customarily charged in the locality for similar legal services; 4)  the amount involved and the results obtained; 5)  the time limitations imposed by the client or by the circumstances; 6)  the nature and length of the professional relationship with the client; 7)  the experience, reputation, and ability of the lawyer or lawyers performing the services; and 8)  whether the fee is fixed or contingent. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 65 (Yap 2007).

Attorney’s Fees

      For an attorney fee award, the fair hourly rate in the locality is used, and the starting point of a reasonable attorney’s fee calculation is done by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. This is the lodestar approach. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 65 (Yap 2007).

Attorney’s Fees

      A difficulty with using time as the lodestar is that there is an incentive to maximize the time devoted to the case. The court can guard against this by disallowing hours deemed unnecessary or performed in a grossly inefficient fashion. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 66 n.5 (Yap 2007).

Attorney’s Fees

      It does not follow that the time an attorney actually expended is the amount of time reasonably expended. To determine the number of hours reasonably spent, the court must first determine the number of hours actually spent and then subtract from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 66 (Yap 2007).

Attorney’s Fees

      Redundant, or otherwise unnecessary hours must be excluded from the amount claimed because courts are charged with deducting for redundant hours. Redundant hours generally occur where more than one attorney represented a client. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 66 (Yap 2007).

Attorney’s Fees

      The test for attorney fee compensation is whether a given step was necessary to attain the relief

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afforded. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 66 (Yap 2007).

Attorney’s Fees

      Time devoted to intra-office consultations between attorneys that duplicated the other’s time will be reduced. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 66 (Yap 2007).

Attorney’s Fees

      Hours spent researching governmental liability for navigational aids will be disallowed when no governmental entity was ever a party to the case or ever held liable because fees are to be recovered only from the party against whom liability has been established, and only for hours reasonably devoted to establishing that liability. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 66-67 (Yap 2007).

Attorney’s Fees

      Defendants who are found liable are not required to compensate the plaintiffs for attorney hours spent against others who were not found liable. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 67 (Yap 2007).

Attorney’s Fees

      In determining a reasonable attorney’s fees award, time devoted to travel is not included. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 67 (Yap 2007).

Attorney’s Fees

      Time spent on review of "unrelated" cases, which also involved oil spill damage and were thus relevant, will not be disallowed and whether the lead plaintiffs in a class action can receive "incentive" payments, although an issue not tried, is one which may eventually need to be addressed during any fairness hearing on the as yet unproposed distribution plan so those hours will not be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 67 (Yap 2007).

Attorney’s Fees

      Since different rates of compensation are awarded dependent on the litigation task performed and not strictly according to the position of the person performing it, when most of the preparation of the fee request was in the nature of bookkeeping or accounting, the court will reduce the 17.7 hours at the attorney fee rate to 2 hours at the attorney fee rate to achieve the same result instead of having to determine what should be a proper rate for the bookkeeping tasks. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 67-68 (Yap 2007).

Attorney’s Fees

      Time spent conferring between attorneys and to respond to a plaintiff’s inquiry concerning this case’s status after it had been submitted to the court and the parties were awaiting the court’s decision, were essentially conferences about whether the court had issued a decision yet and thus unnecessary. Those hours will be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 68 (Yap 2007).

Attorney’s Fees

      Since settlement discussions that took place before the end of trial may have helped to materially advance the litigation, those hours will not be disallowed except for those hours that appear excessive. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 68 (Yap 2007).

Attorney’s Fees

      When the punitive damages issue was not tried and appears to apply only to a former

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party against whom no liability was found, time spent on that claim will be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 68 (Yap 2007).

Attorney’s Fees

      When the time spent on the issue of piercing the corporate veil was not tried, but the research advanced the litigation and was needed to frame litigation strategy, those hours will not be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 68 (Yap 2007).

Attorney’s Fees

      When PCB contamination claims were not tried and were abandoned early on after the plaintiffs determined that the facts did not warrant such a claim, the hours devoted to PCB claims will be disallowed since a PCB contamination claim is factually different from an oil contamination claim. Where the claims do not share a common basis in fact or are not legally related, the court need not award fees if the claims prove unsuccessful. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 68 (Yap 2007).

Attorney’s Fees

     When attorneys invoiced hours for conferring with one or more other attorneys in the same firm, the duplicate hours will be disallowed and when the other law firm’s lead attorney invoiced time for conferencing with an attorney from the first firm for which that attorney also invoiced time, the first firm’s time will be reduced by 50%. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 69 (Yap 2007).

Attorney’s Fees

     When an attorney invoiced a half hour for delivering case materials for the lead plaintiff to a hotel, this is delivery work, and delivery work is valued at delivery service rates, not attorney rates, regardless of whether an attorney preformed the task. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 69 (Yap 2007).

Admiralty

      A proctor in admiralty is a lawyer engaged in admiralty practice. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70 n.6 (Yap 2007).

Attorney’s Fees

      While a party may legitimately oppose the admission pro hac vice of opposing counsel, when the time spent on opposing the admission was excessive and without any sound basis, the court will disallow the hours spent on this. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70 (Yap 2007).

Attorney’s Fees

      Time spent on an attorney’s education so that he may competently handle the case may be excluded from an attorney fee award. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70 (Yap 2007).

Attorney’s Fees

      The hours an attorney spent, not on the attorney’s continuing legal education, but on research into scientific areas about which the defendants’ experts would testify at trial, will not be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70 (Yap 2007).

Attorney’s Fees

      Time spent to warn the attorney’s clients not to comment to the press will not be disallowed.

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People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70 (Yap 2007).

Attorney’s Fees

      Administrative work is considered part of overhead, and the court will disallow hours devoted to administrative, instead of legal, tasks. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70 (Yap 2007).

Attorney’s Fees

      Finding and retaining co-counsel and making his fee arrangements or the hiring of needed staff is not compensable as attorneys’ fees even if needed only to prosecute a particular case. When the search for co-counsel ultimately resulted in the retention of eminently qualified co-counsel whose participation materially advanced the litigation, those hours will be reduced since non-legal tasks must be compensated at lower rates or the hours reduced to achieve the same results. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 70-71 (Yap 2007).

Attorney’s Fees

      The essentially bookkeeping portion of the fee request will not be computed at the full attorney fee rate, but the hours that appear to be legal work will. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 71 (Yap 2007).

Attorney’s Fees; Costs

      Compensation for time and expenses in a state court can only be sought (if at all possible) in that state court. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 71 (Yap 2007).

Attorney’s Fees

     When time spent on anthropological research and on research into the ability of Yap municipalities to sue materially advanced the litigation and was necessary for the plaintiffs to frame their pleadings and arguments concerning the nature of the plaintiffs’ rights to the resources affected by the oil spill and the hours spent do not appear excessive, they will not be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 71 (Yap 2007).

Attorney’s Fees

      When time spent on investigation into Compact of Free Association, FSM limitation of liability legislation, FSM maritime lien statute, P & I coverage is necessary background information for a proceeding in admiralty in rem, and materially advanced the litigation, it will not be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 71 (Yap 2007).

Attorney’s Fees

      Time spent on work done to establish the liability of one against whom no liability was found will be disallowed and time spent on professional responsibility research that is unexplained, will also be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 71 (Yap 2007).

Attorney’s Fees

     There is no basis in law or fact to require the defendants to compensate the plaintiffs for drafting or lobbying for legislation even if such legislation was to assist the plaintiffs by legislative means. Therefore all hours devoted to legislative work will be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 71 (Yap 2007).

Attorney’s Fees

     Although the court can take the across-the-board percentage reduction of the attorneys’ invoiced time approach to eliminate redundant, excessive, and unnecessary hours if the attorney fee records are

[15 FSM Intrm 60]

voluminous, when the attorney fee records, while voluminous, are not so large as to preclude the court’s entry-by-entry examination, it will not. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 72 (Yap 2007).

Attorney’s Fees

      When a law firm has attorneys who are admitted before the FSM Supreme Court and the lead attorney has an office in the FSM, the attorneys must expect to be considered local FSM attorneys whose fee award would be measured by the prevailing local rates and whose legal expertise must also be considered as available in the FSM. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 72 (Yap 2007).

Attorney’s Fees

      When the one private attorney in Yap now averages $110 per hour and when, in 2002, $120 per hour was found to be a reasonable fee for a difficult case in which novel issues were presented and the relief sought was ultimately achieved, $125 per hour is an appropriate lodestar rate in Yap for this case. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 72 (Yap 2007).

Attorney’s Fees

      In determining a fee award, the plaintiffs’ success is to be measured qualitatively as well as quantitatively so that when the plaintiffs succeeded on their central claim ) damage to Yap’s natural marine resources ) their attorneys’ fees award will not be reduced because of their initial, overly-optimistic estimation of part of their damages claim. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 72 (Yap 2007).

Attorney’s Fees

      After a determination of what would be a normal fee for the services of each attorney, adjustments should be made upwards or downwards to reflect special considerations such as contingency, complexity, amount of recovery, relative recovery to members of the class, inducement to counsel to serve as private attorneys general, duplication of services, public service considerations, etc. However, even in contingency cases, a fee enhancement is the exception, and not the rule. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 73 (Yap 2007).

Attorney’s Fees

      When one co-counsel shouldered the expense of funding the litigation and thus bore the bulk of the risk involved and when that co-counsel provided needed and otherwise unavailable (in the FSM or the Western Pacific) legal expertise, that co-counsel’s time should be enhanced by a multiplier. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 73 (Yap 2007).

Costs

     Costs are awarded to prevailing parties as a matter of course. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 73 (Yap 2007).

Costs

      Taxation of costs is not an additional award for the prevailing party, but is a reimbursement to the prevailing party of actual expenses (costs) incurred. But costs are not synonymous with a party’s expenses since only certain types of expenses are cognizable as costs. This is true even when the litigants have successfully recovered under a private attorney general theory. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

     When it is shown that no attorney is available on the island where the litigation is taking place,

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the trial court may award as costs a prevailing party’s reasonable travel expenses for its attorney. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Civil Procedure ) Depositions; Costs

     Deposition costs will be allowed when the transcribed deposition was admitted into evidence at trial. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

     The expense of a trial transcript is taxable when that transcript is necessarily obtained for use in a trial, particularly when the trial was long and the issues were complex. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

      A $49.28 "court filing fee" will be disallowed when it is unexplained and since another court’s filing fee will not be awarded as a cost. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

     The $25 cost for a certificate of good standing will be disallowed as a cost even though it was a necessary expenditure in order to apply to appear pro hac vice because it is considered part of overhead. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

      Expenditures for photocopying, toll phone calls, faxing, postage, and courier services are disallowed as costs. Internet expenses fall in the same category and are therefore also disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

      Westlaw electronic research charges are properly reflected as a part of a law firm’s overhead, and as such, are included in the attorney’s fees as opposed to ordinary costs and will be disallowed as costs. Law library research charges also fall into this category and will also be disallowed. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74 (Yap 2007).

Costs

       Expenses not adequately explained are disallowed as costs, as are expenses that are either overhead items or are for personal use. "Working meals" are not allowed as costs since if that is what they were, the attorney was compensated for the time spent working. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 74-75 & n.8 (Yap 2007).

Costs; Evidence ) Expert Opinion

      Generally, although absent a statute or contract expert witness fees and research expenses are not taxable costs, successful litigants may be awarded their out-of-pocket expenses for an expert witness when the expert witness was an indispensable part of the trial and was crucial to the ultimate resolution of the issues and the costs were appropriate and not excessive. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 75 (Yap 2007).

Costs

      When an expert witness’s research or testimony was not crucial to the resolution of any issue, but was helpful only to estimate the market cost for protein needed to replace the fish not harvested and the expert’s work on this point relied on another expert witness’s factual research for which that other expert billed $1,265.70, the court may find that $1,500 would be a fair and reasonable cost for

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the value of the expert’s work that was indispensable to the resolution of the value of the lost fish harvest issue. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 75 (Yap 2007).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

      On September 21, 2006, the court issued its decision and awarded the plaintiff class $2,950,638, plus interest and their reasonable attorneys’ fees and costs and ordered the plaintiffs to submit their attorneys’ fees and costs request. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 421, 422 (Yap 2006).

      On November 17, 2006, the plaintiffs filed and served their First Motion for Award of Attorneys Fees and Costs; with supporting memorandum and affidavits of Daniel J. Berman, James P. Walsh, Clement Mulalap, Richard Morry, and Martin Fineman. The plaintiffs filed under seal, and did not serve on opposing counsel, Exhibit B, the pro forma invoices for the work performed by attorneys in the law firm of Berman O’Connor & Mann, one of the two law firms that represented the plaintiff class. That law firm’s submission consisted only of the total hours worked by each of six attorneys at that law firm, their individual billing rate, and a total.

      On January 5, 2007, the defendants filed an opposition, which included an objection to the filing under seal. They contended that the court could not and should not make any award for the Berman O’Connor & Mann attorneys’ fees claim because that firm had failed to support its request when it withheld its records and because any fee award based on that law firm’s request and the withheld exhibit would be a blatant violation of the defendants’ right to due process of law.

I.  Requirement of Disclosure

      The plaintiffs contended that the Berman O’Connor & Mann pro forma invoices should not be disclosed because they would reveal the plaintiffs’ confidential work product and privileged attorney-client communication and that they need not be disclosed because the court could simply add a percentage of the base judgment as an attorney fee award. The court rejected these contentions.  The reasons follow.

A.  Fee Disclosure

      Matters concerning attorney’s fees are generally not privileged when an attorney’s fee award has been requested. Maxima Corp. v. 6933 Arlington Dev. Ltd. P’ship, 641 A.2d 977, 984-85 (Md. Ct. Spec. App. 1994); cf. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987) (information about the source of funds to pay a party’s attorney’s fees normally is not privileged). A blanket refusal to disclose to opposing counsel any supporting documentation showing the date, the work done, and the amount of time spent on each service for which a compensation claim was made, goes far beyond any possible assertion of attorney-client or work-product privilege. See Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992); cf. United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir. 1982). And it is error and a due process violation for a trial court to award attorney’s fees without giving the opposing party (who will be paying the fee award) notice and an opportunity to challenge the proposed award’s reasonableness. Kinsey v. Preeson, 746 P.2d 542, 552 (Colo. 1987) (trial court’s attorney’s fee award findings were insufficient when the reasonableness determination was based only on an attorney’s affidavit submitted after trial).

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      The party seeking an attorney’s fees award always bears the burden of providing sufficient evidence to prove its claim. Kaiser v. MEPC Am. Properties, Inc., 518 N.E.2d 424, 427 (Ill. App. Ct. 1987). "An appropriate fee consists of reasonable charges for reasonable services." Id. Thus,

to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client since this type of data, without more, does not provide the court with sufficient information as to their reasonableness ) a matter which cannot be determined on the basis of conjecture or conclusions of the attorney seeking the fees. Rather the [request] for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. Because of the importance of these factors, it is incumbent upon the [requester] to present detailed records maintained during the course of the litigation concerning facts and computations upon which the charges are predicated.

Id. at 427-28 (citations omitted). "Without itemization, [a] court will not approve any attorney fee claims." Estate of O’Neal v. United States, 81 F. Supp. 2d 1205, 1224 (N.D. Ala. 1999). Thus, the Berman O’Connor & Mann summary of the total hours worked by six of its attorneys and their individual billing rates and Daniel Berman’s affidavit that the summary was correct, were inadequate to support an attorney fee award.

B.  Alternative Percentage Proposal

      The plaintiffs contended, in the alternative, that no itemization was needed because the court could just set a percentage of the judgment as the attorney fee award. This percentage was to be drawn from the law firm’s retainer agreement with the plaintiffs, which provided for a fee of 33a% of recovery if court action were required, or 40% if the case were appealed. For this alternative, the plaintiffs relied on Davis v. Kutta, 8 FSM Intrm. 218 (Chk. 1997), in which the court awarded attorney’s fees equal to 33% of the judgment, ostensibly in accordance with the attorney’s contingency fee agreement.

      A client may contract with an attorney for specified legal services and commit itself to pay the amounts billed in accordance with the contract’s terms, but what the client has agreed to pay is not relevant to the court’s determination of a reasonable fee since the court makes its reasonableness determination without reference to any prior fee agreement between the attorney and client. FSM Dev. Bank v. Kaminanga, 12 FSM Intrm. 454, 455 (Chk. 2004); see also Adams v. Island Homes Constr., Inc., 12 FSM Intrm. 644, 647 (Pon. 2004). This is because "the entitlement to [a] reasonable attorneys’ fees [award] is that of the [client], not of his attorney. The amount [the client] actually pays his attorney is irrelevant . . . ." Illinois v. Sangamo Constr. Co., 657 F.2d 855, 861 (7th Cir. 1981) (citation omitted).

      Unlike here, Davis’s attorney failed to indicate his customary hourly fee or to maintain any contemporaneous time records but estimated that he had spent 111.45 hours on that case. Davis, 8 FSM Intrm. at 220-21. The Davis court set its attorney’s fee award at 33% of its earlier judgment, but warned that since the "point of departure for determining a reasonable fee . . . is to look at the amount of time spent . . . counsel should maintain careful records of time actually spent, notwithstanding the existence of any contingency fee agreement." Id. at 224. The Davis court’s flat percentage award in

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accord with the fee agreement should be considered a one-time occurrence, due to a very sympathetic plaintiff (an innocent, uninvolved female bystander severely injured when shot by untrained, panic-stricken police), Davis v. Kutta, 7 FSM Intrm. 536, 539-42 (Chk. 1996), and absolutely no contemporaneous attorney records. Its use of the fee agreement percentage must be limited to that case’s facts. The Davis reasoning, as interpreted by the plaintiffs is thus flawed, as is its arithmetic.

      Also, unlike Davis, this is a class action, and a class action fee award "should not be based solely on a percentage of the recovery, since the court should consider several other factors in order to decide what is an appropriate fee." 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1803, at 521 (1986).

      Thus, when the court is making its reasonableness determination for the plaintiffs’ attorney fee award, it must disregard the contingent fee agreement’s terms.

C.  Disclosure Ordered

      Accordingly, since any attorney’s fees award must be based upon a showing and a judicial finding that the amount of fees is reasonable, Bank of the FSM v. Bartolome, 4 FSM Intrm. 182, 184 (Pon. 1990), the court had to require the plaintiffs to submit detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which a claim for compensation was made, Bank of Hawaii v. Jack, 4 FSM Intrm. 216, 219 (Pon. 1990); Salik v. U Corp., 4 FSM Intrm. 48, 50-51 (Pon. 1989), so that the defendants would have notice and an opportunity to challenge the reasonableness of the Berman O’Connor & Mann fee claim. Therefore, the court, on January 17, 2007, rejected the blanket claim of attorney-client privilege, and, rather than have the plaintiffs forfeit their Berman O’Connor & Mann attorneys’ fees claim for lack of proof, ordered the withheld Exhibit B served on opposing counsel.

       On January 19, 2007, Berman O’Connor & Mann filed and served Exhibit B. There was no motion to redact parts of Exhibit B. The defendants filed their opposition to the Exhibit B filing on January 31, 2007. On February 2, 2007, the plaintiffs filed their reply to the defendants’ original opposition, and, on February 5, 2007, the defendants filed a surreply to that reply. On February 14, 2007, the plaintiffs filed their reply to the supplemental opposition.

      The plaintiffs seek an award of costs in the amount of $561,140.52 and an award of attorneys’

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fees in the amount of $1,125,938.25, which they then seek to enhance with a multiplier of 2 to total $2,251,876 in attorneys’ fees.

II.   Attorneys’ Fees Award

      The plaintiffs have submitted pro forma invoices showing 1,469.2 hours of work by Davis Wright Tremaine LLP attorneys, 14.6 hours of work by Davis Wright Tremaine LLP legal assistants, and 2,290.3 hours of work by Berman O’Connor & Mann attorneys. The defendants challenge many of these hours as either not for reasonable services or not for services for which a fee award can be made.

      In determining the reasonableness of an attorney fee award, the appellate division has considered two different, but similar sets of factors. One involving twelve factors, is drawn from civil rights caselaw, and the other, involving eight factors, is drawn from the FSM Model Rules of Professional Conduct Rule 1.5(a) and thus is used to determine whether a fee is unreasonable and thus unethical.

      The twelve-factor test considers: 1)  the time and labor required; 2)  the novelty and difficulty of the questions; 3)  the skill requisite to perform the legal service properly; 4)  the preclusion of other employment by the attorney due to acceptance of the case; 5)  the customary fee; 6)  whether the fee is fixed or contingent; 7)  time limitations imposed by the client or the circumstances; 8)  the amount involved and the results obtained; 9)  the attorneys’ experience, reputation, and ability; 10)  the case’s "undesirability"; 11)  the nature and length of the professional relationship with the client; and 12)  awards in similar cases. Tolenoa v. Kosrae, 3 FSM Intrm. 167, 170-71 (App. 1987).

     The eight-factor test considers: 1)  the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2)  the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3)  the fee customarily charged in the locality for similar legal services; 4)  the amount involved and the results obtained; 5)  the time limitations imposed by the client or by the circumstances; 6)  the nature and length of the professional relationship with the client; 7)  the experience, reputation, and ability of the lawyer or lawyers performing the services; and 8)  whether the fee is fixed or contingent. FSM MRPC R. 1.5(a).

      The only real differences between these two tests is that the twelve-factor test includes consideration of the case’s undesirability and awards in similar cases and the eight-factor test makes consideration of whether the acceptance of the particular employment will preclude other employment by the lawyer dependent upon whether that preclusion was apparent to the client and limits the fee to the customary fee in the case’s locality.

      Thus, generally the fair hourly rate in the locality is used, Tolenoa, 3 FSM Intrm. at 173; Bank of Guam v. O’Sonis, 9 FSM Intrm. 106, 110 (Chk. 1999), and the starting point of a reasonable attorney’s fee calculation is done by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate, Herman v. Municipality of Patta, 12 FSM Intrm. 130, 137

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(Chk. 2003).  This is the lodestar approach. 5 It does not follow that the time actually expended is the amount of time reasonably expended." Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (emphasis in original). "To determine the number of hours reasonably spent, [the court] must first determine the number of hours actually spent and then subtract from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary." Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984).

B.  Davis Wright Tremaine LLP Attorneys’ Hours

      The plaintiffs’ motion asks for an attorney fee award for 1,469.2 hours of work done (through October 31, 2006) by ten different Davis Wright Tremaine LLP attorneys, with billing rates from $125 to $460 per hour (97.36% at $460), for a total of $666,039.50 and 14.6 hours done by various "legal assistants" for a total of $2,335 ($159.93 per hour on average); for a total of 1,483.8 hours, $668,374.50.

       Redundant, or otherwise unnecessary hours must be excluded from the amount claimed because courts are "charged with deducting for redundant hours. Redundant hours generally occur where more than one attorney represented a client." Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988). "The test for [attorney fee] compensation is whether a given step was necessary to attain the relief afforded." Greenside v. Ariyoshi, 526 F. Supp. 1194, 1197 (D. Haw. 1981).

      Thus, time devoted to intra-office consultations between attorneys, which duplicated the other’s time will be reduced. O’Sonis, 9 FSM Intrm. at 110. Two separate attorneys (neither of them the Davis Wright Tremaine lead attorney) each billed .2 hours to confer with each other. The Davis Wright Tremaine lead attorney conferred for .5 hours with another attorney in his firm that also billed for the same conference.  Therefore, these .7 invoiced hours will be disallowed. The Davis Wright Tremaine lead attorney also invoiced 9 hours conferring with Berman O’Connor & Mann attorneys for which those attorneys also invoiced hours.  Those hours will be discussed below under that firm’s hours.

      The defendants contend that the plaintiffs’ fee request should be reduced by the time spent on claims either not made in this litigation or made but on which the plaintiffs either did not prevail or their success was very limited. For this proposition, they rely on AHPW, Inc. v. FSM, 13 FSM Intrm. 36 (Pon. 2004), in which the trial court apportioned the attorney fee request between two claims, one of which the plaintiffs in that case prevailed upon and the other on which AHPW was only nominally successful. The AHPW fee request did not specify which hours had been devoted to which claim so the court assigned 50% of the attorney hours to the nominally successful claim and awarded few fees on it.

      The difficulty with this approach is that in AHPW the two claims were so separate and distinct, arising out of different occurrences and transactions, they could have been brought as two separate lawsuits. In this case, the claims tried against the defendants arose from a single occurrence, the allision of the M/V Kyowa Violet with the reef at the entrance to Tomil Channel and the resulting oil spill and this fee request tells the court what hours were spent on which claim.

      The lead Davis Wright Tremaine attorney spent part of 6.1 hours researching governmental

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liability for navigational aids. No governmental entity was ever a party to this case or ever held liable. "Fees are to be recovered only from the party against whom liability has been established, and only for hours reasonably devoted to establishing that liability." Baugham v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1241 (3d Cir. 1978). Defendants who are found liable are not required to compensate the plaintiffs for attorney hours spent against others who were not found liable. Id.; cf. Estate of Mori v. Chuuk, 10 FSM Intrm. 123, 125 (Chk. 2001) (costs for service on those defendants who were found not liable are not allowed to the otherwise prevailing plaintiff). The court will therefore disallow 5.5 hours, the time it appears was spent on this issue.

      The lead Davis Wright Tremaine attorney invoiced 25.8 hours (computed at $460 per hour) as time devoted entirely to travel or to return, and another 79 hours as devoted to travel along with some other activity. In determining a reasonable attorney’s fees award, time devoted to travel is not included. O’Sonis, 9 FSM Intrm. at 110.

      Awarding attorney’s fees for time spent traveling would be an invitation for abuse. The usual argument (the court is not aware of any other) is that it is for time spent away from the attorney’s office, which could have been spent in the office engaged in billable work. Whatever validity that this argument might have once had, it no longer has any. It is not uncommon for professionals to work while traveling or to travel at night while sleeping. With the ever-present laptop computer and other modern work aids or even old-fashioned pen and paper, traveling attorneys can (and do) billable work while traveling. A fee request for travel time will therefore be denied in its entirety. The time component of an attorney’s fee calculation can only be based on actual work performed whether while traveling or not. The 25.8 hours devoted solely to travel or return is thus disallowed in its entirety. Of the other 79 hours, some entries appear to involve little or no travel time while others appear to be mostly travel. The court will therefore disallow 26.3 hours of these entries.

      The defendants also contend that attorney hours devoted 1) to claims of PCB contamination, which were abandoned when the plaintiffs amended their complaint; 2)  to punitive damages, which were never sought; 3)  to research about piercing the corporate veil, when no such attempt was made; 4)  to settlement attempts, when the case has not been settled; 5)  to conferences with other attorneys and impatient plaintiffs after the case had been submitted to the court’s decision; 6)  to preparation of the attorney’s fee motion; 7)  to whether "incentive payments" could be made to lead plaintiffs in a class action settlement; and 8)  to review of other unrelated cases, should all be disallowed on the ground that they are unrelated to any claims that were tried in this case. These objections will be addressed in reverse order.

       The time spent on review of "unrelated" cases, appears to have been spent reviewing cases that also involved oil spill damage and were thus relevant. These attorney hours do not appear to be excessive and will not be disallowed. Whether the lead plaintiffs can receive "incentive" payments, is also an issue not tried, but one which may eventually need to be addressed during any fairness hearing on the as yet unproposed distribution plan. These hours will not be disallowed.

      The lead Davis Wright Tremaine attorney spent 17.7 hours on preparing this attorney fee claim. Since the court had already ruled that it would award the plaintiffs their reasonable attorney’s fees, most of the preparation of the fee request was in the nature of bookkeeping or accounting. "Different rates of compensation are awarded dependent on the litigation task performed, and not strictly according to the position of the person performing it." Browning v. Peyton, 123 F.R.D. 75, 79 (S.D.N.Y. 1988) (delivery work valued at delivery service rates whether performed by summer associates, paralegals, or messengers) (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir. 1974); Fiacco v. City of Rensselaer, 663 F. Supp. 743, 746 (N.D.N.Y. 1987)); see also In re Fine Paper Antitrust Litig., 751 F.2d 562, 591 (3d Cir. 1984) ("the reasonable rate of compensation differs

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for different activities").  As a matter of economic efficiency, most of the fee application should have been prepared by the record-keeping staff and the records should have been kept in such a way that a minimum amount of effort was necessary to retrieve and assemble them. Inefficient record keepers should not be rewarded with more compensation because it took them longer to assemble the records. Therefore, the court will reduce the 17.7 hours at the attorney fee rate to 2 hours at the attorney fee rate to achieve the same result instead of having to determine what should be a proper rate for the bookkeeping tasks. The defendants have cited cases where all time for preparing a fee request in a class action that had created a "common fund" is disallowed because such activity did not benefit the plaintiff class. The point is well-taken. But this is not a "common fund" case in which the fees awarded will be deducted from the fund available for distribution to the plaintiff class.  In this case, the fee award will be added to the fund available for distribution to the class.

      Time was also spent conferring between attorneys and to respond to a plaintiff’s inquiry concerning this case’s status after it had been submitted to the court and the parties were awaiting the court’s decision. These conferences were essentially about whether the court had issued a decision yet, and thus unnecessary. These 3.7 hours will be disallowed.

      Substantial time was spent on settlement attempts.  The defendants contend these hours should be disallowed because no settlement was reached and the hours also do not relate to any of the issues tried in the case. The plaintiffs respond that these hours should be allowed because it is court policy and in the public interest to encourage settlement. Certainly, time spent on unsuccessful settlement negotiations before trial may materially advance the litigation by narrowing or clarifying issues. The hours challenged by the defendants are almost entirely for settlement discussions that took place after each side had presented its case-in-chief but before the rebuttal phase of the trial was finished. Another five hours took place after the court had issued its decision. Settlement discussions that took place before the end of trial may have helped to materially advance the litigation, although in this case it is difficult to tell. However, the hours spent on "settlement" appear excessive. The court will therefore disallow 25.6 hours (and allow 32 hours). (Ten of the 67.6 "settlement" hours sought were for travel and have already been disallowed.) The five hours that took place after the court’s decision was entered may be reconsidered if the parties do settle the case in the future.

      Punitive damages is another issue not tried.  The plaintiffs assert that the punitive damages research was needed since punitive damages were awarded in the Exxon Valdez oil spill based on that ship’s captain being drunk at the time the oil spill occurred and that since the oil spill in this case took place the day after Christmas, it was possible that the Kyowa Violet’s captain was inebriated from Christmas celebrating.  The parties, by stipulation, dismissed Captain Park Chae Un as a party-defendant before trial.  The punitive damages claim thus appears to apply only to a former party against whom no liability was found. As such, these 3.4 hours will be disallowed.

      Time was also spent on the issue of piercing the corporate veil. The plaintiffs contend that this research was necessary because a shell corporation owned the ship. Although this issue was not tried, the court concludes that this research advanced the litigation and was needed to frame litigation strategy.  These hours will not be disallowed.

      The PCB contamination claims were not tried and were abandoned early on after the plaintiffs determined that the facts did not warrant such a claim.  "[W]here the claims do not share a common basis in fact or are not legally related, the court need not award fees if the claims prove unsuccessful." Goos v. National Ass’n of Realtors, 68 F.3d 1380, 1386-87 (D.C. Cir. 1995).  A PCB contamination claim is factually different from an oil contamination claim.  The PCB claim was unsuccessful. Of the 35.2 hours devoted to PCB claims combined with other activities, the court estimates that 12.2 hours were devoted solely to the PCB issue. These hours will be disallowed.

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      Accordingly, the court will disallow 118.9 Davis Wright Tremaine attorney hours. No paralegal hours are disallowed.

C.  Berman O’Connor & Mann Attorneys’ Hours

      The plaintiffs’ motion asks for an attorneys’ fees award for 2,290.3 hours of work done by six different Berman O’Connor & Mann attorneys with billing rates from $150 to $200 per hour (99.28% at $200) for a total of $457,563.75.

      The court reviewed the Berman O’Connor & Mann attorneys’ time sheet for redundant or unnecessary hours, as done above with the Davis Wright Tremaine hours.  The review revealed sixteen instances, amounting to ten hours, where Berman O’Connor & Mann attorneys invoiced hours for conferring with one or more other Berman O’Connor & Mann attorneys.  (Often the lengths of time would differ. Usually, but not always, the longer time would include other tasks. The court always used the shorter time for this disallowance.)  These ten hours will be disallowed. Of the nine hours in which the Davis Wright Tremaine lead attorney invoiced time for conferencing with a Berman O’Connor & Mann attorney for which that Berman O’Connor & Mann attorney also invoiced time, the Berman O’Connor & Mann time will be reduced by 50%. Therefore a further 4.5 Berman O’Connor & Mann attorney hours will be disallowed.  A Berman O’Connor & Mann attorney also invoiced (at $200 per hour) a half hour for delivering case materials to a hotel for a Yapese chief to transfer to the lead plaintiff.  This is delivery work, and delivery work is valued at delivery service rates, not attorney rates, regardless of whether an attorney preforms the task. Browning, 123 F.R.D. at 79. Accordingly, the court will disallow .4 hours of that half hour.

      The defendants also contend that attorney hours devoted 1)  to drafting oil spill liability legislation for consideration by the Yap Legislature, which did not enact it; 2)  to reviewing the Compact of Free Association, FSM limitation of liability legislation, P & I coverage, professional disqualification, and whether the captain was intoxicated, which were all issues not pursued at trial; 3)  to researching the right or ability of Yap municipalities to sue; 4)  to unrelated cases involving John Gisog; 5)  to time spent traveling; 6)  to address PCB contamination; 7)  to the issue of punitive damages; 8)  to the issue of governmental liability for navigational aids; 9)  to the issue of piercing the corporate veil; 10)  to settlement efforts; 11)  to confer with others after the matter had been submitted to the court for decision; 12)  to prepare this attorney fee application; 13)  to whether "incentive payments" to lead plaintiffs could be made; 14)  to discuss the matter with other attorneys while seeking (and obtaining) co-counsel; 15)  to do various administrative, non-legal, duplicative, or inadequately-explained work; 16)  to continuing legal education; and 17)  to oppose the pro hac vice admission of defense co-counsel for trial, should all be disallowed on the ground that they involve issues not tried.

      As discussed above, the court will not disallow hours because they were spent on research on either piercing the corporate veil or on "incentive payments" to the lead plaintiffs.  The court will disallow the hours spent on the punitive damages claim, the PCB claim, governmental liability for navigational aids, or spent traveling or conferring on the case’s status after it had been submitted for decision.

      The court will therefore disallow 17 hours for time invoiced on conferring on case status after the matter had been submitted for decision.  Of the 37.5 hours listed as travel and other activities only 5.5 hours appear to be devoted to travel and will be disallowed.  Only one hour was spent on governmental liability for navigational aids and that one hour will be disallowed.  Of the 30.35 hours spent on PCB contamination and other activities, 14 hours appear to have been spent solely on PCB contamination and will be disallowed.  Of the 33.8 hours spent on the punitive damages claim and other activities, 23.75 appear to have been devoted solely to punitive damages and will be disallowed.

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      As stated above, the time spent on settlement efforts may serve to materially advance the litigation and settlement should be encouraged.  Thus the time spent in settlement efforts before the trial was completed will not be disallowed on the ground no settlement was reached.  The individual entries are not excessive.  The 1.75 hours spent on settlement after the decision was issued will be disallowed but may be reconsidered if a settlement is eventually reached. The remaining objections will be addressed in reverse order.

      The defendants contend that the hours spent working on the plaintiffs’ opposition to the pro hac vice admission of Stephen C. Smith, the defendants’ co-counsel at trial were unwarranted and should be disallowed.  Smith was a proctor in admiralty, as were James Walsh, the plaintiffs’ co-counsel at trial, and the defendants’ lead counsel.  The plaintiffs claim their opposition was based on their contention that this was the first time in the FSM that two co-counsel had been admitted pro hac vice in one case.  However, it would have been inherently unfair for the plaintiffs’ two trial co-counsel (one of whom was admitted pro hac vice) to, in effect, overwhelm a single defense counsel during a long trial. Admitting Smith as co-counsel only put the parties on equal footing. While a party may legitimately oppose the admission pro hac vice of opposing counsel, the time spent on opposing Smith’s admission was excessive and without any sound basis.  The court will therefore disallow 13 of the hours that were spent on this.

      The defendants contend that time spent on an attorney’s continuing legal education and attending a coral reef conference is not recoverable.  Time spent on an attorney’s education so that he may competently handle the case may be excluded from an attorney fee award. Ladies Ctr. Nebr., Inc. v. Thone, 645 F.2d 645, 647 (8th Cir. 1981).  The plaintiffs respond that the entries involved, not the attorney’s continuing legal education, but research into scientific areas about which the defendants’ experts testified at trial. The plaintiffs’ characterization of the entries appears accurate and these hours will not be disallowed.

      The defendants also contend that the hours invoiced include various administrative, press release, and other activities for which a fee award cannot be made.  The conferencing with other attorneys in the same law office is dealt with above.  The plaintiffs respond that the reference to press comments was to warn the plaintiffs not to comment to the press. Since no evidence of a press release has been shown to the court, the court finds that the plaintiffs’ characterization is correct.  Some activities are clearly administrative and not legal, e.g., arranging for an office lease and the furnishing of that office and the later transfer of those files.  Administrative work is considered part of overhead. Guckenberger v. Boston Univ., 8 F. Supp. 2d 91, 102 (D. Mass. 1998).  The court will disallow 3 hours as devoted to administrative, instead of legal, tasks.

      The defendants further ask that the court disallow attorney hours spent finding and retaining co-counsel and making his fee arrangements and the consultation with other attorneys not in this case.  The defendants correctly contend that the plaintiffs’ lawyers’ expenses in organizing the plaintiffs’ representation in a class action are not compensable.  Looking for qualified co-counsel is akin to hiring needed staff.  The time and expense hiring needed staff is not compensable as attorneys’ fees even if the staff were needed only to prosecute a particular case.  The discussions between counsel in the Berman O’Connor & Mann firm and the later search for co-counsel did ultimately result in its retention of eminently qualified co-counsel whose participation materially advanced the litigation.  As stated above, non-legal tasks should be compensated at lower rates or the hours reduced to achieve the same results.  Therefore the 29.6 hours spent discussing and later seeking co-counsel will be reduced to 7.5

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hours (disallowing 22.1 hours). Cf. Silva v. National Telewire Corp., No. 99-219-JD, 2001 WL 1609387 at *4 (D.N.H. Dec. 12, 2001) (7 hours searching for class co-counsel at full professional rate reduced to 2 hours).

      The defendants contend that the hours spent on preparing a fee request should not be allowed as attorney fees.  As stated above, the essentially bookkeeping portion of the fee request will not be computed at the full attorney fee rate.  Of the 22 hours devoted to preparing the fee request, 6.5 hours appear to be legal work to support the size of the request.  The court will therefore allow 8.25 hours at the attorney fee rate to cover the fee request preparation legal and bookkeeping work. (The court thus disallows 13.75 hours.)

      The defendants contend that 15.25 hours were devoted to an unrelated state court case involving John Gisog.  The plaintiffs respond that Chief Gisog is a member of the plaintiff class in this case and that the communications involved were about this case.  A careful review of the time entries reveals that some of the time involved was clearly for a state court case or some other case. Compensation for time and expenses in a state court can only be sought (if at all possible) in that state court.  Cf. Estate of Mori, 10 FSM Intrm. at 125 (costs in a related state court case were disallowed as FSM court will award costs only for the costs in its case).  Therefore 4.75 hours will be disallowed for work on an (admittedly related) state court case(s).

       The defendants contend that the hours spent on research into the ability of Yap municipalities to sue and on anthropological research must be disallowed since they were not an issue at trial. The court cannot say that this research did not materially advance the litigation.  Anthropological research (in particular, the Yapese concept of tabinaw) was an issue at trial. This research was necessary for the plaintiffs to frame their pleadings and arguments concerning the nature of the plaintiffs’ rights to the resources affected by the oil spill. The hours spent do not appear excessive and will not be disallowed.

      The defendants contend that Berman O’Connor & Mann attorneys expended time on research on the Compact of Free Association, FSM limitation of liability legislation, FSM maritime lien statute, P & I coverage, whether the captain was intoxicated, and professional disqualification, which should all be disallowed.  The court cannot say that investigation into Compact of Free Association, FSM limitation of liability legislation, FSM maritime lien statute, P & I coverage did not materially advance the litigation.  Such research is necessary background information for a proceeding in admiralty in rem, as was this case.  The time spent on whether the captain was intoxicated when the allision took place, is, as stated above, work done to establish the liability of one against whom no liability was found.  This time (one hour) will be disallowed.  The time (three hours) spent on professional responsibility research is unexplained, and will also be disallowed.

       Berman O’Connor & Mann attorneys invoiced 49 hours on researching, drafting, and advocating the passage of legislation by the Yap Legislature to regulate the control of oils spills. The plaintiffs state that their comprehensive review of the Yap State Code showed that Yap lacked contemporary regulations and enforcement structure for oil spill situations and that plaintiffs’ counsel then drafted and proposed such legislation "to assist the plaintiffs by legislative means" and that such work merits compensation. Regardless of whether drafting such legislation merits compensation, the defendants are not the ones to compensate them for it. There is no basis in law or fact to require the defendants to compensate the plaintiffs for drafting or lobbying for legislation. It did not materially advance the litigation. Of the 49 hours attributed to work on this draft legislation or combined with other work, 47.75 hours were devoted to legislative work and will be disallowed.

      Accordingly, a total of 185.25 Berman O’Connor & Mann attorneys’ hours are disallowed.

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D.  Computation of Hourly Rate

      Thus, 2,105.05 Berman O’Connor & Mann attorney hours, 1,350.3 Davis Wright Tremaine attorney hours were allowed. By this examination, the attorney time records about 8.1% of the time entries were disallowed.  The court could have taken the approach of an across-the-board percentage reduction of the attorneys’ invoiced time to eliminate redundant, excessive, and unnecessary hours.  This approach is permitted when the attorney fee records are voluminous. Loranger v. Stierheim, 10 F.3d 776, 778 (11th Cir. 1994).  Such an approach would have required at least a 10% reduction in attorney time. However in this case, the attorney fee records, while voluminous (about two file folders), were not so large as to preclude the court’s entry-by-entry examination.

      The plaintiffs contend that higher hourly rates should be awarded because no local attorneys were available and legal expertise of a type unavailable in the FSM was needed.  The Berman O’Connor & Mann lead attorney maintains an office in the FSM (as partner of a Pohnpei-based attorney who is not a Berman O’Connor & Mann partner).  Of the six Berman O’Connor & Mann attorneys who billed hours working on this case, three, including the lead attorney, are attorneys admitted before this court, and those three logged 2,143 hours of the 2,290.3 hours (93.57%) invoiced by Berman O’Connor & Mann.  The Berman O’Connor & Mann attorneys must therefore expect to be considered local FSM attorneys whose fee award would be measured by the prevailing local rates and must also be considered as legal expertise available in the FSM. It would be inequitable if, for example, the Berman O’Connor & Mann lead attorney could expect (and be granted) a higher hourly rate to be awarded by billing through his Guam office (where higher local rates prevail) rather than his FSM office. Cf. Amayo v. MJ Co., 10 FSM Intrm. 371, 386 (Pon. 2001) (counsel with a Pohnpei office considered local counsel).

      The one private attorney in Yap (who was unavailable for this case) was reported as charging in the $80-$100 per hour range and his affidavit states that his fee now averages $110 per hour. In 2002, $120 per hour was found to be a reasonable fee when the case was a difficult one and novel issues were presented and the relief sought was ultimately achieved. Udot Municipality v. FSM, 10 FSM Intrm. 498, 500 (Chk. 2002), aff’d, 12 FSM Intrm. 29 (App. 2003).  Thus $125 per hour is an appropriate rate in Yap for this case. The allowed 2,105.05 Berman O’Connor & Mann hours will therefore be multiplied by $125 to determine its lodestar amount, which thus equals $263,131.25. The 1,350.3 allowed Davis Wright Tremaine hours (22.6 hours invoiced at $125 per hour) multiplied by $125 equals a lodestar amount of $168,787.50. The court will award $730 ) $50 per hour, for the 14.6 paralegal hours.

E.  Enhancement or Multiplier

      The plaintiffs ask that their attorneys’ lodestar rate be enhanced by a multiplier of two (100%) to reflect this case’s size, complexity, and risky contingent nature.  The defendants contend that since the plaintiffs originally sought $32,308,937 in damages (reduced at trial to about $9 million) but the court awarded only $2,950,638 (plus interest and attorneys’ fees) the court should not only not enhance the attorney fee award, but should reduce it proportionately. However, the plaintiffs’ success is to be measured qualitatively as well as quantitatively. Aubin v. Fudala, 782 F.2d 287, 290 (1st Cir. 1986). The plaintiffs succeeded on their central claim ) damage to Yap’s natural marine resources. Their attorneys’ fees award will not be reduced because of their initial, overly-optimistic estimation of part of their damages claim.

[15 FSM Intrm 73]

      The appellate division in Tolenoa v. Kosrae, 3 FSM Intrm. 167 (App. 1987) noted that U.S. courts sometimes enhanced the lodestar amount based on "the undesirability of the case, the risk involved, the vindication of important rights, or other reasons." Id. at 173. That court further noted that since Tolenoa was not a "compelling case for enhancement," it would decline to decide whether such a practice would or should be adopted in the Federated States of Micronesia. Id. at 174. This is an instance where a case can be made for enhancement.

      After a determination of what would be a normal fee for the services of each [attorney], adjustments should be made upwards or downwards to reflect special considerations such as contingency, complexity, amount of recovery, relative recovery to members of the class, inducement to counsel to serve as private attorneys general, duplication of services, public service considerations, etc.

Liebman v. J.W. Petersen Coal & Oil Co., 63 F.R.D. 684, 701 (N.D. Ill. 1974). However, even in contingency cases, "a fee enhancement is the exception, and not the rule." Deary v. City of Gloucester, 789 F. Supp. 61, 67 (D. Mass. 1992).

      This was not an undesirable case.  It was a desirable case in that liability was easy to establish.  It was undesirable in that, while not difficult to prove damages, it was difficult to investigate the complex scientific evidence needed to prove the entire range of possible damages.  These considerations balance each other out.  The court also cannot say that there was ever a great risk that the plaintiffs would never recover damages. The risk involved was the length of time it would take the plaintiffs to recover those damages and for the attorneys to be paid.

      After the Berman O’Connor & Mann firm acquired James Walsh of Davis Wright Tremaine as co-counsel early in this litigation, Davis Wright Tremaine shouldered the expense of funding this litigation and thus bore the bulk of the risk involved in the litigation. Davis Wright Tremaine provided legal expertise otherwise unavailable in the FSM or the Western Pacific. James Walsh had over 30 years of legal experience in oil spill cases and litigation. Since Davis Wright Tremaine bore the bulk of the risk and particularly since James Walsh provided needed and otherwise unavailable expertise, the court concludes that James Walsh’s time should be enhanced by a multiplier of 2. Of the 1,350.3 allowed Davis Wright Tremaine attorney hours, 1,312.2 hours ($164,025 of the lodestar amount) were attributable to James Walsh. Walsh’s attorney’s fees will therefore be set at $328,050. No multiplier will be applied to the other attorneys (lodestar amount $4,762.50) in the Davis Wright Tremaine firm or to its paralegals (lodestar amount $730). Nor will a multiplier be applied to the Berman O’Connor & Mann firm.

F.  Fees Awarded

      The court therefore awards the plaintiffs $595,943.75 in attorneys’ fees ($263,131.25 attributable to Berman O’Connor & Mann and $332,812.50 attributable to Davis Wright Tremaine) plus $730 in Davis Wright Tremaine paralegal fees.

III.   Expenses to Be Taxed as Costs

      Costs are awarded to prevailing parties as a matter of course. FSM Civ. R. 54(d); Damarlane v. United States, 8 FSM Intrm. 45, 54 (App. 1997). The Berman O’Connor & Mann firm lists $22,939.72 in expenses for which the plaintiffs seek to tax costs and the Davis Wright Tremaine firm lists $538,663.30 in expenses (including $477,536 in expert witness fees) for which the plaintiffs seek to tax costs.

[15 FSM Intrm 74]

       Taxation of costs is not an additional award for the prevailing party, but is a reimbursement to the prevailing party of actual expenses (costs) incurred. Nena v. Kosrae (III), 6 FSM Intrm. 564, 569 (App. 1994). But costs are not synonymous with a party’s expenses since only certain types of expenses are cognizable as costs. Amayo, 10 FSM Intrm. at 385.  This is true even when the litigants have successfully recovered under a private attorney general theory. Sangamo Constr. Co., 657 F.2d at 866.

A.  Expenses Not Related to Expert Witnesses

      When it is shown that no attorney is available on the island where the litigation is taking place, the trial court may award as costs a prevailing party’s reasonable travel expenses for its attorney. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 26 (App. 1985).  No local attorney was available on Yap. Therefore those expenses will be allowed.  Deposition costs will be allowed when the transcribed deposition was admitted into evidence at trial. Amayo, 10 FSM Intrm. at 385-86.  The expense of a trial transcript is taxable when that transcript is necessarily obtained for use in a trial, particularly when, as was the case here, the trial was long and the issues were complex. See generally 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2677 (3d ed. 1998).  The deposition and trial transcript costs will therefore be allowed.

      The Davis Wright Tremaine expense of a $49.28 court filing fee is unexplained and, generally, another court’s filing fee will not be awarded as a cost. Estate of Mori, 10 FSM Intrm. at 125. This court has no filing fees.  The $49.28 will be disallowed.  The $25 cost for a certificate of good standing also will be disallowed as a cost even though it was a necessary expenditure in order to apply to appear pro hac vice in this court. It is considered part of overhead.

      Expenditures for photocopying, toll phone calls, faxing, postage, and courier services are disallowed. O’Sonis, 9 FSM Intrm. at 111; Salik v. U Corp., 4 FSM Intrm. 48, 49 (Pon. 1989). The Berman O’Connor & Mann firm lists $1,357.18 in copying charges, $374.68 in telephone calls (plus $90 worth of phone cards and $68.00 of Telecom charges), $241.55 in fax charges; and $1,259.58 in courier service charges. The Davis Wright Tremaine firm lists $369 in copying charges, $14.30 in telephone charges, $37.50 for fax charges, and $1,156.52 in courier charges. These will all be disallowed. Internet expenses fall in the same category. Therefore the $65.34 Berman O’Connor & Mann internet charges are disallowed.

       The Berman O’Connor & Mann firm lists $235.23 and the Davis Wright Tremaine firm lists $67.17 in Westlaw research charges. These charges will be disallowed. "Electronic research charges are properly reflected as a part of a law firm’s overhead," and as such, are included in attorney’s fees as opposed to ordinary costs. In re San Juan Dupont Plaza Hotel Fire Litig., 142 F.R.D. 41, 47 (D.P.R. 1992); see also Wolfe v. Wolfe, 570 F. Supp. 826, 828 (D.S.C. 1983). Law library research charges also fall into this category. Therefore $155 of Davis Wright Tremaine law library research expenses are disallowed.

      Expenses not adequately explained are disallowed. Damarlane v. United States, 7 FSM Intrm. 468, 470 (Pon. 1996). The following Berman O’Connor & Mann expenses are either not adequately explained or are obviously not taxable as costs since they are either overhead items or are for personal use: $2,500 for a generator; $21 for "BT"; $42 for "Yap, M. McCoy"; $1,200 for a local contract worker; $82.47 for "Chiefs tools (Kmart)"; $20 for "Tumon Underwater world"; $111.23 for "California Mart ) Chiefs"; $4.50 for "FSM Taxes/Chiefs"; $155.25 for various office supplies; $131.25 for "KMart (gifts)"; $348 for dives (including a sharkfeed dive) after the trial had recessed in November 2004; $139.81 for various snacks, newspapers, clothing, and other personal items; and $95.93 for

[15 FSM Intrm 75]

meals with chiefs.

      Thus, of the $22,939.72 Berman O’Connor & Mann expenses, $8,195 are disallowed as costs and $14,744.72 are allowed as taxable costs. Of the $60,663.30 in Davis Wright Tremaine non-expert-witness expenses, $1,873.77 are disallowed as costs and $58,789.63 are allowed as taxable costs. The expert witness expenses are addressed next.

B.  Expert Witness Fees and Expenses

      The defendants contend that the court cannot tax as costs any of the plaintiffs’ expert witnesses’ $477,536 in fees and expenses and that, if the court could tax costs for the expert witnesses’ expenses and fees, then the court should not tax any, or a very minimal amount of, the $430,180.98 that the plaintiffs seek as Dr. Ed Whitelaw’s (and his firm’s) fees and expenses, because the plaintiffs did not prevail on the points on which Whitelaw’s research or testimony was offered.

      Generally, although absent a statute or contract expert witness fees and research expenses are not taxable costs, International Woodworkers of Am. v. Champion Int’l Corp., 790 F.2d 1174 (5th Cir. 1986); Sangamo Constr. Co., 657 F.2d at 866-67, successful litigants may be awarded their out-of-pocket expenses for an expert witness when the expert witness was an indispensable part of the trial and was crucial to the ultimate resolution of the issues and the costs were appropriate and not excessive, Welsch v. Likins, 68 F.R.D. 589, 596-97 (D. Minn.), aff’d, 525 F.2d 987 (8th Cir. 1975); see also Nemmers v. City of Dubuque, 764 F.2d 502, 506 (8th Cir. 1985); Ackerman v. Western Elec. Co., 113 F.R.D. 143, 146 (N.D. Cal. 1986); Feher v. Department of Labor & Indus. Relations, 561 F. Supp. 757, 768 (D. Haw. 1983); Cagle v. Cox, 87 F.R.D. 467, 471 (E.D. Va. 1980). In this case, the expert witnesses other than Whitelaw were an indispensable part of the trial and crucial to the ultimate resolution of the central issues tried ) the methodology for and the calculation of damages. Their expenses ($47,356.52) were appropriate and not excessive. They will be allowed as taxable costs.

      Whitelaw’s (and his firm’s) expenses were excessive on their face. He spent little time on Yap conducting research. The overwhelming majority of his work was done either on claims the court rejected or on claims for which his methodology was rejected. His research or testimony was not crucial to the resolution of any issue. It was helpful only to estimate the market cost for protein needed to replace the fish not harvested. The defendants suggest that since Whitelaw’s work on this point relied on another expert witness’s factual research for which that other expert billed Davis Wright Tremaine $1,265.70, the same sum would be an appropriate measure of the value of Whitelaw’s positive contribution to the resolution of that issue. The court therefore finds that $1,500 would be a fair and reasonable cost for the value of Whitelaw’s work that was indispensable to the resolution of the value of the lost fish harvest.

C.  Costs Taxed

      The court will therefore allow $122,390.87 of the plaintiffs’ expenses to be taxed as costs ($14,744.72 attributable to Berman O’Connor & Mann and $107,646.15 attributable to Davis Wright Tremaine).

[15 FSM Intrm 76]

IV.   Conclusion

      Accordingly, the court awards $595,943.75 in attorneys’ fees and $730 in paralegal fees. The court also taxes costs of $122,390.87. The clerk shall enter an amended judgment in conformity with this order.

______________________________

Footnotes:

1.  Since the case has been appealed, see People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 501 (Yap 2006) (order setting appeal bond), the plaintiffs presumably sought 40%, although this was unclear.

2.  The arithmetic is flawed because the Davis court supposed that if it took one-third of the base judgment and added it to the judgment, then the client would get the full amount of the base judgment. This is false. To illustrate why, suppose the judgment was for $9. The lawyer’s third would be $3 and the remainder to the client would be $6. Now suppose the court added the a ) $3 ) as an attorney fee award, making the total judgment $12. The lawyer, based on his one-third contingency fee agreement, would get a of $12 ) $4, leaving the client with $8. In order to have $9 left after the lawyer took his fee (which is what the Davis court was ostensibly trying to do), the court would have to award fees of 50% ($4.50) for a total judgment of $13.50. And a 40% fee, which the plaintiffs’ retainer agreement calls for in this case, would require a fee award of 66b% (two-thirds). This further shows why attorney fee award calculation in Davis is unsound and limited to that case’s particular facts.

3.  The defendants also contended that there was no contingent fee agreement in place because the agreement states that the clients are the Municipalities of Rull and Gilman and the plaintiffs are a class composed of Rull and Gilman residents. Neither municipality is a corporate body or has an established municipal government. These municipalities exist as social constructs. Since the court’s decisions must conform to Micronesia’s social configuration, FSM Const. art. XI, § 11, the court gave this contention no weight.

4.  This factor, and the identical factor eight in the eight-factor test, does not contradict the court’s statement above that a reasonable attorney fee award is determined without reference to any fee agreement’s terms because this factor considers the risk the attorney undertook that he might not have a fee to collect ) that is, whether the fee was contingent ) not what the actual terms of the (contingent or fixed) agreement were. Cf. Rader v. Thrasher, 368 P.2d 360, 365 (Cal. 1962) (a "contingent fee contract, since it involves a gamble on the result, may properly provide for a larger compensation").

5.  A difficulty with using time as the lodestar is that there is an incentive to maximize the time devoted to the case. The court can guard against this by disallowing hours deemed "unnecessary or performed in a grossly inefficient fashion." 7B Wright, Miller & Kane, supra § 1803, at 514.

6.  A proctor in admiralty is a lawyer engaged in admiralty practice. See Falanga v. State Bar of Georgia, 150 F.3d 1333, 1346 (11th Cir. 1998); Bennett v. Sinclair Nav. Co., 33 F. Supp. 14, 18 (E.D. Pa. 1940).

7.  In contrast, of the ten Davis Wright Tremaine attorneys for whom fees are sought, only one is admitted to appear before this court, and he invoiced only .8 hour.

8.  A couple of these meals are labeled "working meals." If so, the attorney was compensated for the time spent working.

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