No. 06-1625-BLS2.Commonwealth of Massachusetts Superior Court. Suffolk, SS.
December 16, 2010, December 17, 2010.
MEMORANDUM AND ORDER ON CELANESE CORPORATION’S MOTION FOR ATTORNEYS’ FEES AND COSTS
STEPHEN E. NEEL, Justice of the Superior Court.
Plaintiff Celanese Corporation (Celanese) moves for attorneys’ fees and costs, pursuant to the Court’s Memorandum on Final Judgment dated December 18, 2009. That Memorandum, and the judgment entered December 29, 2009, provided that Celanese could apply for “reasonable attorneys’ fees and costs incurred in said action” under G.L. c. 93A, § 11. The “action” in which such fees and costs are recoverable is Celanese’s successful claim against Resolute under c. 93A for untimely payment of defense costs due under the 2001 Photo Resist Agreement. On that claim (in which the jury awarded Celanese $181,085.69 in damages) Celanese seeks attorneys’ fees of $1,673,057, plus costs of $233,321.81.
Celanese justifies its request by pointing out (1) that, in Celanese’s view, this action forced OneBeacon and Resolute to pay certain claims, before trial, in excess of $7,400,000; (2) that Celanese seeks recovery “only of time and costs billed by its attorneys to collect the overdue amounts owed by Resolute/OneBeacon and to discover the facts establishing OneBeacon’s/Resolute’s liability;” (3) that Celanese’s request does not include “any billings or costs that are unrelated to these activities,” such as fees or costs relating to claims against AMICO; and (4) that, “[a]fter making appropriate deductions for activities that were not directly
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related to Celanese’s claims against Resolute . . ., the fees and expenses sought by Celanese against Resolute are $1,906,378.81, or 87% of these overall charges.” Celanese’s Memorandum, at 1-3. Moreover, Celanese argues, the complexity and challenges it faced in this case were substantial, and its attorneys’ time billed, hourly rates, and costs are reasonable in light of the above and other factors. Id., at 4-5. Finally, Celanese argues that, although its recovery from Resolute was modest by comparison to the damages it sought, the above factors justify its fee request.Id. at 15-16.
Resolute contests Celanese’s arguments, and in addition contends that, because Celanese has not proved that it has actually paid its attorneys the fees and costs it seeks, see Defendants’ Opposition, at 12, Celanese has not “incurred” any fees or costs that may be reimbursed under c. 93A, § 11. The Court rejects Resolute’s argument that a party “incurs” fees only when it has paid them. “Incur” denotes obligation, not payment: to incur is “to become liable or subject to,” as to “incur expenses.” http://www.merriam-webster.com/dictionary/incur (as of December 15, 2010). To the extent that Resolute argues a failure of proof even as to Celanese’s obligation to its attorneys, the Court considers the affidavit of Celanese’s associate general counsel, Jeanne E. Walker, Esq. sufficient evidence to the contrary.[1]
“While the amount of a reasonable attorney’s fee is largely discretionary, a judge `should consider the nature of the case and the issues presented, the time and labor required, the amount
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of damages involved, the result obtained, the experience, reputation, and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.’ `No one factor is determinative, and a factor-by-factor analysis, although helpful, is not required.'”Twin Fires Inv., LLC v. Morgan Stanley DeanWitter Co., 445 Mass. 411, 429-430 (2005) (citations omitted). With those factors in mind, the Court turns to Celanese’s grounds supporting its fee request.
As noted above, Celanese bases its application on “time and costs billed by its attorneys to collect the overdue amounts owed by Resolute/OneBeacon and to discover the facts establishing OneBeacon’s/Resolute’s liability.” Celanese’s Memorandum, at 2. As Resolute points out, Celanese’s claims against OneBeacon and Resolute on the Asbestos/Chemical Agreement were the primary focus at trial, accounted for most of the evidence at trial, and represented a potential recovery of $55,000,000 for Celanese. The Photo Resist claims, on the other hand, represented a potential recovery that was orders of magnitude smaller. As the Court instructed the jury regarding Count III (breach of the 2001 Photo Resist Agreement against OneBeacon):
The parties agree that the defense of all photo resist bodily injury claims brought against Celanese is governed by the Photo Resist Agreement, and that OneBeacon has paid its full one-sixth share of those defense costs under that agreement. The only question is whether OneBeacon made those payments when they were due, or whether OneBeacon delayed making those payments in breach of the Photo Resist agreement, and thereby deprived Celanese of the time value of the money represented by any delayed payments.
Memorandum on Final Judgment, at 2. The jury found for Celanese on Count III, and awarded $181,085.69. On Count X, for violation of c. 93A, the jury found that OneBeacon had committed an unfair or deceptive act or practice, but that such conduct did not cause money
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damages to Celanese; the jury found that Resolute had also committed such conduct, and that Resolute’s conduct caused money damages to Celanese in exactly the amount of the time value of money — $181,085.69 — which the jury had earlier awarded against OneBeacon under the Photo Resist Agreement. Thus, it is clear from the jury’s verdict that Celanese’s recovery against Resolute was in respect of its claim on the Photo Resist Agreement, not the Asbestos/Chemical Agreement. Indeed, it is on precisely that claim that the Court instructed Celanese to submit its motion for fees. Judgment of December 29, 2009, at 2.
In view of the foregoing, the Court does not agree that Celanese is entitled to attorneys’ fees and costs for any claim against OneBeacon, and certainly not for “time and costs billed by its attorneys to collect the overdue amounts owed by Resolute/OneBeacon and to discover the facts establishing OneBeacon’s/Resolute’s liability.” Celanese’s Memorandum, at 2.
For the same reasons, the Court rejects Celanese’s argument that “as a result of [its] litigation efforts, Resolute/OneBeacon had paid substantially all of what was due pursuant to the Cost Share Agreements at the time of trial, which totaled well over $7.0 million.” Id., at 5. Not only was Resolute not a party to those agreements, but defendants’ exposure was largely under the Asbestos/Chemical Agreement, not the Photo Resist Agreement. In any event, Celanese has provided no authority supporting an award of attorneys’ fees under c. 93A for pre-trial payments.
Accordingly, the Court examines Celanese’s submission, including affidavits and time charges, to determine that proportion of fees and costs which may fairly be allocated to Celanese’s c. 93A claim against Resolute under the Photo Resist Agreement. Because the hundreds of (heavily redacted) attorney time sheets submitted, and accompanying summary charts, provide no means for performing that allocation, the submission in this case is as
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“perplexing” as that confronting the trial judge in TwinFires. Id., at 429. Following the teaching of that case, the Court relies on its own memory of the trial, sense of the portion of the total attorney work likely to have performed in respect of the 93A claim against Resolute under the Photo Resist Agreement, and other factors set out in Twin Fires as quoted above. In addition, the Court has reviewed and is assisted by Resolute’s reasonable analysis of Celanese’s submission, which concludes that approximately 10% of the total fees billed relate to the Photo Resist claims.
Finally, the Court concludes that, although high, the total number of hours billed is not surprising given the complexity of the case. The Court also concludes that, given the experience and expertise of Celanese’s attorneys, their billing rates are within the reasonable spectrum of such rates in the Boston area for similar legal services.
Taking into consideration all of the above factors, the Court concludes that $300,000 is a reasonable attorneys’ fee for Celanese’s successful c. 93A claim against Resolute, and that reasonable costs allocable to that claim amount to $135,207.[2]
ORDER
For the reasons stated above, plaintiff Celanese Corporation’s Motion for Attorneys’ Fees and Costs is ALLOWED in the amount of $300,000 in attorneys’ fees, plus $135,207 in costs.
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