Gill et al v. Bausch & Lomb Supplemental Retirement Income Plan I et al
Filing
94
DECISION AND ORDER denying plaintiffs' request for prejudgment interest and granting their request for post-judgment interest on the award of attorney's fees. See Decision and Order for complete details. Signed by Hon. Michael A. Telesca on 5/6/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL E. GILL, THOMAS C.
McDERMOTT, and JAY T. HOLMES,
DECISION AND ORDER
No. 6:09-CV-6043(MAT)
Plaintiffs,
-vsBAUSCH & LOMB SUPPLEMENTAL
RETIREMENT INCOME PLAN I, BAUSCH &
LOMB INCORPORATED, and COMPENSATION
COMMITTEE OF THE BAUSCH & LOMB
BOARD OF DIRECTORS,
Defendants.
I.
Introduction
This
action
arises
under
the
Employee
Retirement
Income
Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq.
(“ERISA”). On April 13, 2015, the Court issued a Decision and Order
(Dkt #91) granting Plaintiffs’ Motion for Attorney Fees and Related
Expenses (Dkt #86) in its entirety. The Court ordered that no
portion of the ultimate award of attorney’s fees and expenses shall
be
paid
with
assets
held
by
the
Bausch
&
Lomb
Supplemental
Retirement Income Plan (“SERP I”). The Court further ordered that
defendant Bausch & Lomb (“B&L”) shall be required to pay the full
amount of any attorney’s fees and related expenses awarded to
Plaintiffs. As an initial award, the Court ordered that B&L shall
pay, in full, the amount requested by Plaintiffs of $730,106.30,
which represented the fees and expenses incurred up to the filing
of Plaintiffs’ motion (Dkt #86). The Court granted Plaintiffs’
request
to
submit
a
supplemental
affidavit
regarding
the
calculation of interest and the additional attorney’s fees and
related expenses incurred after the filing of Plaintiffs’ motion.
On April 20, 2015, Plaintiffs filed an Affidavit (Dkt #92)
detailing
the
additional
work
performed
by
their
attorneys
following the filing of the initial motion for attorney’s fees.
Plaintiffs seek a total of $33,585.00 in attorney’s fees and no
expenses or disbursements. See Affidavit of Harold Kurland, Esq.,
¶¶ 4-10 (Dkt #92). Plaintiffs also submitted a Memorandum of Law
(Dkt #93) regarding the calculation of interest. Plaintiffs assert
that prejudgment
interest
should
be
awarded
at the
New York
statutory interest rate for the period through the granting of
summary judgment by this Court, and that, thereafter, interest
should be calculated according to the rate applicable to federal
judgments. Defendants have not submitted any papers in opposition
to Plaintiffs’ most recent filings. Accordingly, the Court deems
the matter submitted.
II.
Discussion
A.
Prejudgment Interest on Attorney’s Fee Award
Plaintiffs assert that they are entitled prejudgment interest
on this Court’s award of attorney’s fees, and they rely on Jones v.
UNUM Life Ins. Co. v. America, 223 F.3d 130 (2d Cir. 2000), for the
proposition that “[i]n a suit to enforce a right under ERISA, the
question of
whether
or
not
to
award
prejudgment
interest
is
ordinarily left to the discretion of the district court.” Id. at
(citations omitted); see also Wickham Contracting Co., Inc. v.
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Local Union No. 3, IBEW, 955 F.2d 831, 833-34 (2d Cir. 1992)
(“Wickham”). In Wickham, the Second Circuit explained that the
decision to award prejudgment interest “should be a function of
(i) the need to fully compensate the wronged party for actual
damages suffered, (ii) considerations of fairness and the relative
equities of the award, (iii) the remedial purpose of the statute
involved, and/or (iv) such other general principles as are deemed
relevant by the court.”
955 F.2d at 833-34. However, Wickham and
Jones addressed the courts’ ability to exercise discretion in
awarding prejudgment interest generally, and these cases do no
specifically address the propriety of awarding prejudgment interest
on an award of attorney’s fees. Nevertheless, the Second Circuit’s
rubric, as articulated in Wickham, e.g., has been applied in the
specific context of attorney’s fees. Prince of Peace Enterprises,
Inc. v. Top Quality Food Market, LLC, No. 07 CIV. 349 LAP, 2015 WL
456645, at *4 (S.D.N.Y. Feb. 3, 2015) (“Prince of Peace”) (citing
Barcia v. Sitkin, Nos. 79 Civ. 5831(RLC), 79 Civ. 5899(RLC), 1997
WL 66785, at *3-*4 (S.D.N.Y. Feb. 14, 1997) (applying Wickham
factors to request for prejudgment interest on attorney’s fee award
in civil rights action).
In the context of court-awarded attorney’s fees setting,
courts have found prejudgment interest on such fees appropriate
where they are “the sole means of compensation for counsel and
interest is necessary to bridge any gap associated with lost time
value of money and/or opportunity cost, or to incentivize certain
-3-
types of litigation[,]” Prince of Peace, 2015 WL 456645, at *4,
i.e., “‘civil rights litigation,’ the setting in which awarding
prejudgment interest on attorney’s fees is a generally accepted
practice.” Id. (citing Missouri v. Jenkins, 491 U.S. 274, 282-83
(1989)
(holding
that
Eleventh
Amendment
did
not
prohibit
enhancement of fee award under Civil Rights Attorney’s Fees Awards
Act against state to compensate for delay in payment; a district
court
may
determining
consider
an
the
delay
appropriate
in
award
payment
of
as
one
attorney’s
factor
fees);
in
other
citation omitted). In such cases, “delays in payment discourage
attorneys from accepting” them, thereby “frustrating the goal of
private enforcement of federal laws.” Sherwood Brands of R.I., Inc.
v. Smith Enters., Inc., No. Civ.A. 00–287T, 2003 WL 22061871, at *2
(D. R.I. Mar. 31, 2003) (“Sherwood Brands”) (citing Jenkins, 491
U.S. at 282-83; Smith v. Village of Maywood, 17 F.3d 219, 221
(7th Cir. 1994)). However, that rationale does not apply in cases
such as the present one, where the parties pay counsel on an hourly
basis, using their own funds. Id.; see also Prince of Peace, 2015
WL 456645, at *4 (Lanham Act case; noting that award of attorney’s
fees was “not, as in the civil rights context, the only means by
which . . . counsel [was] compensated” and “accordingly there [was]
no need to compensate counsel on the basis of lost time value of
money or opportunity cost”).
After reviewing the caselaw, it is apparent that prejudgment
interest on attorney’s fees is “clearly not the norm.” Data Gen.
-4-
Corp. v. Grumman Sys. Support Corp., 825 F. Supp. 361, 368 (D.
Mass.1993); accord, e.g., Prince of Peace, 2015 WL 456645, at *4.1
As
the
district
court
in
Sherwood
Brands
noted,
calculating
interest on an award of attorney’s fees “would present formidable
practical problems” because such fees “are incurred incrementally
over a
period
of
time[,]”
making
it
“extremely
difficult
to
calculate interest on each component of the total fee.” 2003 WL
22061871, at *2 (citation omitted); see also Prince of Peace, 2015
WL 456645, at *4.
The
Court
finds
the
reasoning
of
the
foregoing
cases
persuasive, and declines to exercise its discretion to award
prejudgment interest on the award of attorney’s fees to Plaintiffs.
See, e.g., Sherwood Brands, 2003 WL 2061871, at *2-*3; Prince of
Peace, 2015 WL 456645, at
B.
*5.
Post-Judgment Interest
Under Section 1961 of Title 28, “[t]he award of post-judgment
interest is mandatory under 28 U.S.C. § 1961.” Indu Craft, Inc. v.
Bank of Baroda, 87 F.3d 614, 619 (2d Cir. 1996). Courts within the
Second Circuit have considered judgments awarding attorneys’ fees
to
constitute
post-judgment
money
judgments
interest
on
and,
such
accordingly,
awards.
Moran
have
awarded
v.
Sasso,
1
A number of federal courts have denied motions for prejudgment interest on
awards of attorney’s fees in intellectual property cases. See, e.g., Prince of
Peace, 2015 WL 456645, at *4 (Lanham Act); Sherwood Brands, 2003 WL 22061871, at
*2 (Lanham Act); Fantasy Inc. v. Fogerty, C.A., No. 85–4929–SC, 1995 WL 261504,
at *8 (N.D. Cal. May 2, 1995) (Copyright Act); Data Gen. Corp., 825 F. Supp. at
368–69 (Copyright Act).
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No. CV-05-4716, 2009 WL 1940785, at *6 (E.D.N.Y. June 17, 2009)
(citing Nicholson v. Williams, No. 00 CV 2229, 2004 WL 4760138, at
*3–*4 (E.D.N.Y. Oct. 25, 2004) (“An award of attorneys’ fees is
considered a ‘money judgment’ and is treated in the same manner as
any other money judgment.”); see also Associated Gen’l Contractors
of Ohio, Inc. v. Drabik, 250 F.3d 482, 485 (6th Cir. 2001) (finding
that the phrase, “any money judgment,” in 28 U.S.C. § 1961 includes
a judgment awarding attorney’s fees) (citation omitted). The Court
agrees that Plaintiffs are entitled to post-judgment interest on
their award of attorney’s fees.
Pursuant
to
Section
1961,
post-judgment
interest
is
“calculated from the date of the entry of judgment, at a rate equal
to the weekly average 1–year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding the date of the judgment.” 28
U.S.C. § 1961(a). “The Second Circuit has not yet established
whether post-judgment interest runs from 1) the date a court
determined a party was entitled to attorneys’ fees or 2) the date
of entry of the judgment determining the exact amount of fees.”
Automobile Club of N.Y., Inc. v. Dykstra, No. 04 Civ. 2576(SHS),
2010 WL 3529235, at *5 (S.D.N.Y. Aug. 24, 2010); see also King v.
JCS
Enters.,
Inc.,
325
F.
Supp.2d
162,
175
(E.D.N.Y.
2004)
(citation omitted). “The majority approach by the Fifth, Eighth,
and Federal Circuits concludes that interest should accrue from the
date the party becomes entitled to the award even if that award is
-6-
not quantified until a later point.” Albahary v. City and Town of
Bristol, Conn., 96 F. Supp.2d 121, 123 (D. Conn. 2000) (collecting
cases).
The minority approach, employed by the Seventh and Tenth
Circuits, holds that interest should only run from the date of
quantification because, before that time, the plaintiff’s claim for
unpaid attorney’s fees “is unliquidated and therefore is not a
‘money judgment’ for purposes of Section 1961.” Id. (collecting
cases).
Plaintiffs argue that the Court should utilize, as a starting
point, the date that this Court entered summary judgment in their
favor. Although the Court determined Defendants’ liability in that
Decision
and
Order,
it
did
not
make
any
determination
that
Plaintiffs were entitled to attorney’s fees. No such ruling was
made until this Court issued its April 13, 2015 Decision and Order,
at which time the Court initially quantified the amount of the
attorney’s fee award. In other words, the date that this Court
determined Plaintiffs were entitled to attorney’s fees was the same
date it determined “the exact amount of fees,” at least up to and
including the date Plaintiffs filed their motion for attorney’s
fees.2 Specifically, the Court ruled that B&L shall be required to
2
This is not out of step with the test employed by one of the Circuits that
employs the majority rule for determining the accrual of post-judgment interest
under Section 1961. See Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542,
545 (5th Cir. 1983) (“If a judgment is rendered that does not mention the right
to attorneys’ fees and the prevailing party is unconditionally entitled to such
fees by statutory right, interest will accrue from the date of judgment. If,
however, judgment is rendered without mention of attorneys’ fees, and the
allowance of fees, is within the discretion of the court, interest will accrue
only from the date the court recognizes the right to such fees in a judgment.”).
In the present case, Plaintiffs were not unconditionally entitled to attorney’s
-7-
pay the
full
amount
requested
to
date
of
$730,106.30, which
represented the fees and expenses incurred up to the filing of
Plaintiffs’ motion. Plaintiffs are entitled to interest at the rate
set forth in 28 U.S.C. § 1961 on $730,106.30, calculated from
April 13, 2015.3
With regard to the additional amount of attorney’s fees
requested of $33,585.00, Defendants have not objected to the
amount’s
reasonableness.
Plaintiffs
are
entitled
to
the
full
amount, which B&L shall be required to pay in its entirety.
Plaintiffs are entitled to interest at the rate set forth in 28
U.S.C. § 1961. For ease of calculation, and because the Court ruled
that Plaintiffs were entitled to motion-related attorney’s fees on
April 13, 2015, although the amount was not quantified, the date of
interest on the additional award shall be calculated from April 13,
2015.
IV.
Conclusion
For the foregoing reasons, Plaintiffs’ request for prejudgment
interest on any award of attorney’s fees is denied.
As the Court ruled in its April 13, 2015 Decision and Order,
Plaintiffs are entitled to attorney’s fees and costs in the amount
fees; rather, it was a decision left to the Court’s discretion.
3
Using April 13, 2015, as the “date of judgment”, the “weekly average 1–year
constant maturity Treasury yield, as published by the Board of Governors of the
Federal Reserve System, for the calendar week preceding the date of the judgment”
(i.e.,
the
week
ending
April
10,
2015),
is
0.22
percent.
See
http://www.federalreserve.gov/releases/h15/20150413/#fn10 (last accessed May 5,
2015).
-8-
of $730,106.30, which represented the fees and expenses incurred up
to the filing of Plaintiffs’ motion. B&L shall be required to pay
the full amount of $730,106.30, which is subject to postjudgment
interest, accrued in accordance with 28 U.S.C. § 1961, at a rate of
0.22 percent, see n.3, supra, from April 13, 2015, until the award
is paid in full.
Plaintiffs are entitled to additional attorney’s fees and
costs in the amount of $33,585.00, which represents the fees and
expenses
incurred
in
the
filing
of
Plaintiffs’
motion
for
attorney’s fees. B&L shall be required to pay the full amount of
$$33,585.00. This additional award is subject to postjudgment
interest, accrued in accordance with 28 U.S.C. § 1961, at a rate of
0.22 percent, see n.3, supra, from April 13, 2015, until the award
is paid in full.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
May 6, 2015
Rochester, New York
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