1995 WL 547089
United States District Court, S.D. New York.
NEW DIRECTIONS and Tim Schermerhorn, Plaintiffs,
Damaso SEDA, as President of Local 100, Transport Workers Union of America, Defendant.
94 CIV. 7663 (HB).
Sept. 13, 1995.
Attorneys and Law Firms
Arthur Z. Schwartz; Lewis, Greenwald, Kennedy, Lewis, Clifton & Schwartz, P.C.; New York City, for plaintiffs.
David B. Rosen; O’Donnell, Schwartz, Glanstein & Rosen; New York City, for defendant.
OPINION AND ORDER
BAER, District Judge.
*1 Plaintiffs New Directions, a caucus within Local 100, Transport Workers of America (“Local 100”), and Tim Schermerhorn, the chairman of New Directions, seek an award of attorneys’ fees in the amount of $14,950.25 against Defendant Damaso Seda, as president of Local 100, for legal expenses incurred in obtaining the preliminary and permanent injunction this Court granted on November 9, 1994.
For the reasons that follow, New Directions’ motion is GRANTED. The fees requested, however, shall be reduced in accordance with this opinion.
This suit arose as a result of Local 100’s distribution of incumbent President Seda’s campaign literature at the union’s expense. The defendant refused to fund a similar distribution of New Directions’ campaign materials, and in the context of the case as submitted, this Court found a violation Title IV of the Labor-Management Reporting and Disclosure Act (the “LMRDA”). 29 U.S.C. § 481(c) et. seq. In accordance with Section 481(c), plaintiffs sought, and this Court granted, a preliminary and permanent injunction ordering defendant to comply with the LMRDA and distribute plaintiff’s campaign material at the union’s expense. Plaintiffs now move for attorneys’ fees.1
Plaintiffs seek attorneys’ fees under the “common benefit” theory, which allows fee shifting in actions that confer a substantial benefit on an identifiable class separate and distinct from the plaintiffs. Conversely, defendant maintains that plaintiffs are not entitled to attorneys’ fees because the “common benefit” theory does not apply to cases brought under Section 481. Defendant further argues that even if the “common benefit” theory does apply to Section 481 cases, plaintiffs did not satisfy the theory’s substantial benefit requirement. In the alternative, defendant argues that if the Court finds that plaintiffs are entitled to attorneys’ fees, the amount they seek should be reduced.
A. Applicability of “Common Benefit” Theory To Section 481(c)
Section 481(c) of the LMRDA affords civil actions to bona fide candidates for union office whose requests for distribution of campaign materials were improperly denied. Its remedial portion provides that
whenever … labor organizations or its [sic] officers authorize the distribution by mail or otherwise to members of campaign literature on behalf of any candidate or of the labor organization itself with reference to such election, similar distribution at the request of any other bona fide candidate shall be made by such labor organization and its officers, with equal treatment as to the expense of such distribution.
29 U.S.C. § 481(c). Notably, Section 481(c) does not mention the award of attorneys’ fees. Plaintiffs contend, however, that attorneys’ fees are appropriate in Section 481(c) cases under the “common benefit” theory. That theory is a well-established exception to the general rule disfavoring fee shifting absent statutory or contractual authorization. Hall v. Cole, 412 U.S. 1, 4 (1972). Under this exception, in the interest of justice courts may award attorneys’ fees when
*2 plaintiff’s successful litigation confers “a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.” … “Fee shifting” is justified in these cases, not because of any “bad faith” of the defendant, but rather, because “[t]o allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense.”
Id. at 5-6 (citations omitted).
At least two circuits have awarded attorneys’ fees to successful Section 481(c) litigants through application of the “common benefit” theory. Bliss v. Holmes, 867 F.2d 256 (6th Cir. 1988) (attorneys’ fees granted for expenses incurred in obtaining a court order requiring union to pay for mailing campaign literature); Mims v. Teamsters Local No. 728, 821 F.2d 1568 (11th Cir. 1987) (same), cert. denied, 484 U.S. 1011 (1988).
Although the Second Circuit has not yet addressed this issue under Section 481(c)‘s pre-election remedial design, it has allowed fee shifting through operation of the “common benefit” theory under Section 482, which authorizes the Secretary of Labor under certain circumstances to bring post-election challenges on behalf of disgruntled union members. In Donovan v. CSEA Local Union 1000, American Federation of State, County and Municipal Employees, AFL-CIO, 784 F.2d 98 (2nd Cir. 1986), cert. denied, 479 U.S. 817 (1986), the Court awarded attorneys’ fees to a union member who intervened in an action brought by the Secretary of Labor under Section 482. Id. at 102-03. According to Section 482’s enforcement scheme, “the Secretary of Labor [has] exclusive authority to bring post-election challenge suits and permits the aggrieved election candidate to intervene solely to support the Secretary’s complaint.” Id. at 102. In granting attorneys’ fees to the intervenor, the Second Circuit stated that “[g]iven the individual union member’s pivotal role in Title IV enforcement, it is essential that the member be able to obtain competent counsel.” Id. at 103 (emphasis added).
In this Court’s view, awarding attorneys’ fees in the instant action is a slight but sensible extension of the holding in Donovan. Here, plaintiffs, without the aid and resources of the office of the Secretary and Labor, played an important and “pivotal role” in Title IV enforcement.
Defendant argues, however, that because the Secretary of Labor can prosecute the claims of harmed union office candidates, albeit after the election is over, plaintiffs need not have sued privately under Section 481(c). This Second Circuit has found, however, that “[a]n aggrieved candidate for union office cannot rely on the Secretary of Labor to bring suit to compel his union to comply with his reasonable request for a campaign mailing; the candidate must bring suit himself.” Mims, 821 F.2d at 1571. Section 481(c)‘s pre-election remedial scheme, therefore, is not a substitute for, but rather a necessary and distinct alternative to, the post-election remedy available under Section 482.
*3 Defendant also contends that under the principles of statutory construction, the “common benefit” theory should not apply to Section 481(c). The Supreme Court has held that if the remedies of a statute are “meticulously detailed,” then Congress must have intended “to mark the boundaries” of the remedies, thus precluding further relief. Hall, 412 U.S. at 9-10. Defendant argues that because of Section 481(c)‘s specific remedy, no other relief should be read into the statute. The Second Circuit, however, has stated that “[w]e cannot say that Title IV represents this type of comprehensive [meticulously detailed] remedial scheme.” Donovan, 784 F.2d at 104.
The defendant further argues that because Congress expressly authorized attorneys’ fees in Title II and V, and failed to do so in Title I and IV, Congress purposefully eliminated the award of attorneys’ fees in this case. But courts have specifically awarded attorneys’ fees under Title I and IV and have concluded that doing so was consistent with Congress’ intent. Hall, 412 U.S at 1 (attorney’s fees available under Title I); Donovan, 784 F.2d at 98 (attorneys’ fees available under Title IV).
Consequently, this Court finds that the “common benefit” theory is applicable to the issue of attorneys’ fees under Section 481(c). Plaintiffs are therefore entitled to attorneys’ fees so long as the underlying action conferred a substantial benefit on the union.
B. Substantial Benefit Under The “Common Benefit” Theory
Plaintiffs contend that in obtaining the injunction New Directions conferred a substantial benefit on the members of Local 100 by: 1) remedying the Section 481(c) violation; 2) preserving union democracy; and 3) providing for a more informed election. Conversely, defendant claims that the benefits conferred on Local 100 are insufficient to shift costs because plaintiffs themselves received the majority of these benefits.
Courts have held that the benefits cited by plaintiffs are sufficient to constitute a substantial benefit, even though the plaintiffs may have benefited more than the union. Hall, 412 U.S. at 8 (while vindicating his own personal right to free speech, plaintiff also preserved union democracy, thereby conferring a substantial benefit on the union); Mims, 821 F.2d at 1571 (successful Section 481(c) plaintiff, while furthering his own interests, benefitted the entire union membership by making them more informed voters).
Defendant also contends that the Court should not grant attorneys’ fees because the plaintiffs’ motives are political. The Supreme Court has squarely rejected this argument and held that the “common benefit” doctrine is not rendered inapplicable merely because plaintiffs’ actions were motivated in part by political ambitions. Hall, 412 U.S. at 14.
Accordingly, because plaintiffs conferred a substantial benefit on Local 100, they are entitled to attorneys’ fees.
C. Monetary Award of Attorneys’s fees:
*4 Plaintiffs initially sought the following award:
Arthur Z Schwartz:
Costs and disbursements
After reviewing defendant’s opposition papers, plaintiffs agreed to reduce 4.5 hours of Mr. Schwartz’ time ($1,350) and 1.4 hours of Ms. Esposito’s time ($175). Plaintiffs have subsequently added 6 hours of Mr. Schwartz’ time for preparing their reply brief. The amount plaintiffs now seek totals $14,950.25.
Defendant argues that plaintiffs’ attorneys’ fees should be reduced by 60% to reflect the reduction in benefit conferred to the union due to plaintiffs’ delay in pursuing the preliminary injunction. Specifically, defendant claims that by cunningly seeking injunctive relief three full months after Seda’s improper electioneering, instead of immediately, plaintiffs gained the unfair and unnecessary advantage of having its response distributed to union members on the eve of the election. According to the defendant, this delay transformed what should have been an adversarial balance into a major electioneering advantage and diluted the benefit conferred to the union.
This Court finds that plaintiffs did delay in pursuing this litigation, which maximized their interests at the expense of the union members. Although recognizing the inherent imprecision of quantifying monetarily the amount of lost benefit to the union from this delay, the Court nevertheless finds it appropriate and just to reduce plaintiffs’ fees by one third.
For the foregoing reasons, plaintiffs’ motion for attorneys’ fees is GRANTED. The fees requested, however, shall be reduced by the amount specified in this opinion. After recalculating the submitted bill, and allowing for reasonable disbursements, the plaintiffs’ recoverable fees total $10,016.
The Clerk is directed to mark this action as closed on the docket.
Not Reported in F.Supp., 1995 WL 547089, 150 L.R.R.M. (BNA) 2431