source: Caselaw Access Project

author: HAWKINS, District Judge.

license: Public Domain

text:
    Charles G. SATTERFIELD and Vicki Satterfield, Plaintiffs, v. LOCKHEED MISSILES AND SPACE COMPANY, INC., Defendant and Third-Party Plaintiff, v. TRIDENT INDUSTRIAL MEDICINE, P.A., J.S. Moore, M.D., Diane O. Varner and Biomedical Reference Laboratories, Inc., Third-Party Defendants.
    Civ. A. No. 2:84-0454-1.
    United States District Court, D. South Carolina, Charleston Division.
    Sept. 6, 1985.
    William J. Clifford, Charleston, S.C., for plaintiff.
    Antony M. Merck, David B. McCormack, Charleston, S.C., for defendant and third party plaintiff.
    Mark H. Wall, Charleston, S.C., for Trident, Moore & Varner.
    Robert H. Hood, Charleston, S.C., for Biomedical Reference Lab.
   ORDER AND JUDGMENT

HAWKINS, District Judge.

This is a diversity action for wrongful termination of an employment contract. The defendant and third-party plaintiff, Lockheed Missiles and Space Company, Inc. (hereinafter “Lockheed”), moves for summary judgment against the plaintiffs pursuant to Rule 56(c), Federal Rules of Civil Procedure. Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P. For reasons to be stated, this court is of the opinion that Lockheed’s motion for summary judgment should be granted.

A. FACTS AND PROCEDURAL HISTORY

Charles G. Satterfield (hereinafter “Satterfield”) was employed by Lockheed as an electronics missile technician in September of 1979. He was required to have an annual physical as part of his employment. On July 28, 1981, Satterfield reported to third-party defendant Trident Industrial Medicine (hereinafter “Trident”) for his physical. Beginning in 1981, certain employees of the Lockheed facility in Charleston were required to have a urine drug screen for marijuana as part of their physical. Pursuant to this requirement, a urine specimen was given by Satterfield on July 28, 1981. The specimen was forwarded by Trident to third-party defendant Biomedical Reference Laboratories, Inc. (hereinafter “Biomedical”) for analysis. The specimen was analyzed on July 29, 1981, and a computer report was generated on July 30, 1981. The computer report indicated a positive test result. This result was reported to Lockheed by Biomedical. A retest on the urine sample was performed on August 3, 1981. The retest confirmed a positive result. Satterfield was informed by Lockheed of the positive test result and told that he would be terminated from his position. He was terminated in August of 1981.

Satterfield and his wife initiated a lawsuit in this court against Lockheed on March 16, 1984, based upon his termination. They allege that he was wrongfully discharged for being under the influence of a non-prescription drug when Lockheed knew, or should have known, that his urine sample had been mixed up with others in unlabeled bottles. The plaintiffs also assert the enzyme multiplied immunoassy test (hereinafter “EMIT”) was not a dependable test and would give false results. Further, the complaint alleges that the EMIT test does not measure the psycho-pharmacological effects of whether or not an individual is under the influence of marijuana. The plaintiffs seek recovery on four causes of action: (1) wrongful termination, (2) breach of covenant of good faith and fair dealing, (3) intentional infliction of emotional distress, and (4) invasion of privacy.

Lockheed brought a third-party action on April 4, 1984, against Trident, Dr. J.S. Moore (hereinafter “Moore”), Diane D. Varner (hereinafter Varner) and Biomedical, alleging they were negligent in certain particulars including a failure to properly label and account for Satterfield’s urine sample, a failure to advise Lockheed or Trident that the EMIT test was unreliable and rendered false results, and a failure to advise Lockheed or Trident that the EMIT test was not appropriate to measure whether an individual is under the influence of marijuana. As to Biomedical only, Lockheed alleges that it failed to properly analyze the urine specimen. Lockheed seeks indemnification from all third-party defendants for any amounts for which it may be found liable to plaintiffs.

On June 1, 1984, Varner, Moore and Trident cross-claimed against Biomedical. They allege that it failed to properly label the urine sample, analyze it, and advise Lockheed that the urine test was inappropriate or unreliable. They seek indemnification for any amounts for which they may be liable to Lockheed.

Since the time of the institution of this suit, the parties have exchanged discovery requests including interrogatories and motions to produce. Additionally, depositions have been taken of the plaintiffs as well as of Moore, Varner, Dr. Benjamin Flora of Biomedical, and representatives of Lockheed.

On November 16, 1984, Lockheed filed a motion for partial summary judgment seeking to dismiss plaintiffs’ causes of action for wrongful termination and breach of covenant of good faith and fair dealing. On December 20, 1984, the plaintiffs filed their memorandum in opposition to Lockheed’s motion. Lockheed submitted a reply to the plaintiffs’ memorandum on February 5, 1985.

Biomedical filed its own motion for summary judgment against Lockheed on March 15, 1985. Lockheed submitted no response to that motion. Thereafter, on April 19, 1985, Lockheed moved for summary judgment on plaintiffs’ remaining causes of action for intentional infliction of emotional distress and invasion of privacy. The plaintiffs opposed this motion in a June 13, 1985, memorandum. On June 17,1985, this court heard oral arguments on all motions and took Lockheed’s motion under advisement. It stayed all other motions because a disposition in Lockheed’s favor on plaintiffs’ complaint would render all other motions moot. Since the date of that hearing, the court has received several letters from Lockheed inviting its attention to recent precedent from state and federal courts.

B. LOCKHEED’S MOTION FOR SUMMARY JUDGMENT

1. Wrongful Termination

In plaintiffs’ complaint they allege, inter alia, the existence of a “written contract” for permanent employment between Satterfield and Lockheed, that Satterfield was subsequently wrongfully discharged in violation of this contract, and that, as a result of the alleged wrongful discharge, they are entitled to receive damages.

Lockheed denies existence of a written employment contract between it and Satterfield and asserts that Satterfield’s employment was for an indefinite period of time, terminable at-will by either party. Lockheed further argues that, even if Satterfield had a written contract with it, which is denied, such contract was for an indefinite duration and was, therefore, terminable at-will by either party.

In South Carolina, a contract for permanent employment of an indefinite duration, which is not supported by any consideration other than the obligation of service to be performed on the one hand and wages to be paid on the other, is terminable at the will of either party. Ludwick v. This Minute of Carolina, Inc., 283 S.C. 149, 321 S.E.2d 618 (S.C.App.1984); Hudson v. Zenith Engraving Company, Inc., 273 S.C. 766, 259 S.E.2d 812 (1979); Gainey v. Coker’s Pedigreed Seed Company, 227 S.C. 200, 87 S.E.2d 486 (1955); Orsini v. Trojan Steel Corporation, 219 S.C. 272, 64 S.E.2d 878 (1951); Weber v. Perry, 201 S.C. 8, 21 S.E.2d 193 (1942); Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499 (1936). South Carolina follows the general rule that permanent employment means steady employment, a steady job, a position of some permanence, as contrasted by temporary employment or a temporary job. Ordinarily, where there is no additional expression as to duration, a contract for permanent employment implies an indefinite general hiring, terminable at-will. Orsini v. Trojan Steel Corporation, 219 S.C. 272, 64 S.E.2d 878 (1951).

In addition, an employment contract terminable at the will of either party may be terminated at any time, for any reason, or for no reason at all. Ludwick v. This Minute of Carolina, 283 S.C. 149, 321 S.E.2d 618, (S.C.App.1984); Todd v. South Carolina Farm Bureau Mutual Insurance Co., 276 S.C. 284, 278 S.E.2d 607 (1981); Ross v. Life Insurance Company of Virginia, 273 S.C. 764, 259 S.E.2d 814 (1979); Parker v. Southeastern Haulers, 210 S.C. 18, 41 S.E.2d 387 (1947). Therefore, the termination of an employment at-will by either party does not normally give rise to a cause of action for breach of contract. Hudson v. Zenith Engraving Co., Inc., 273 S.C. 766, 259 S.E.2d 812 (1979). If Satterfield was an at-will employee, neither he nor his wife has a cause of action against Lockheed for wrongful discharge.

To prove the existence of written contract between the parties, Satterfield apparently relies upon a ‘‘Hire Notice.” This document is plaintiffs’ only evidence in support of their contentions that he had a written contract. However much the plaintiffs wish it were true, the “Hire Notice” simply does not amount to a written contract.

The uncontradicted affidavit of Claude Callan, Lockheed’s Human Resource Representative, establishes that the “Hire Notice” was not a written contract. The affidavit reveals that there was no written contract of employment between Charles G. Satterfield and the defendant Lockheed, that Satterfield was hired for an indefinite period of time, and that he could quit or be terminated at any time.

The “Hire Notice” itself states only Satterfield’s position, salary and starting date and provides a brief explanation of Lockheed’s “Conflict of Interest” policy. There is no mention of an employment contract or employment for a specific time period. The evidence is uncontradicted that Satterfield was an at-will employee whose employment could be terminated at any time. Moreover, Satterfield’s own deposition testimony confirms this fact:

Q. What was the period of time for which you were hired? How long were you going to work there?
A. Until I retired. Thirty years if I could.
Q. Did Lockheed tell you you were going to work there 30 years, or do you mean that was your personal intention?
A. There was nothing stated that there would be any reason that I wouldn’t work there 30 years when I was hired.
Q. Was there anything stated that you would work there 30 years or any period of time?
A. No. But I think that’s true with any job.
Q. Were you obligated to stay there any particular period of time?
A. I would say no.

Charles Satterfield Dep. pp. 15-16.

Q. Was there any term to the contract? Did you have a contract for one year at a certain rate?
A. No.
Q. Any renewal of the contract — year after time—
A. No it’s—
Q. When they hired you, were you informed that you could be fired for any reason like they didn’t like the color of your hair or you were wearing a mustache or anything like that?
A. No.
Q. Were you aware that that’s the way it works in South Carolina?
A. I am now. I wasn’t then, but I am now.
Q. Did anyone ever tell you anything to the contrary at Lockheed?
A. You mean that—
Q. You had some special status that prevented them from firing you or letting you go or doing anything they wanted to you as an employee as to terms of termination?
A. No. .
Q..... Have you ever seen anyone previously fired by Lockheed prior to you?
A. Sure. [pp. 108-9].
Q. If you wanted to quit Lockheed, what would you have to do?
A. Give them a two-week notice.
Q. Could you have just walked off the job and said, “I quit”?
A. You could have, ... [p. 119].

In their memorandum in opposition to Lockheed’s motion, plaintiffs try to overcome the at-will employment relationship by arguing (1) that portions of an Employee Policies and Benefits Manual “expressed specific provisions of employment which created binding obligations on each party to the employment contract,” which Lockheed breached, and (2) that a covenant of good faith and fair dealing is implied by law in at-will employment contracts, which covenant Lockheed breached. Neither of plaintiffs’ arguments, however, has merit.

The affidavit of Callan belies the contention that the Employee Policies and Benefits Manual created binding contractual obligations between the parties. As set forth in that affidavit, the Employee Policies and Benefits Manual which Satterfield received was given to all hourly employees; Satterfield received this manual subsequent to his employment with Lockheed; provisions of the manual were not discussed with Satterfield prior to his employment with Lockheed; provisions of the manual could be changed unilaterally by Lockheed, and the manual was not designed to establish any binding terms of employment, but was rather designed for informational and instructional purposes only.

Significantly, plaintiffs cite no case law in support of their argument. Their position is clearly not the law in South Carolina and has been squarely rejected by the majority of jurisdictions addressing the issue. See, e.g., Caster v. Hennessey, 727 F.2d 1075 (11th Cir.1984) (applying Florida law); Ferraro v. Koelsch, 119 Wis.2d 407, 350 N.W.2d 735 (Wis.App.1984); Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 466 A.2d 1084 (1983); White v. Chelsea Industries, Inc., 425 So.2d 1090 (Ala.1983); Heideck v. Kent General Hospital, Inc., 446 A.2d 1095 (Del.Supr.1982); Reynolds Manufacturing Co. v. Mendoza, 644 S.W.2d 536 (Tex.Civ.App.1982); Sargent v. Illinois Institute of Technology, 78 Ill.App.3d 117, 33 Ill.Dec. 937, 397 N.E.2d 443 (1979); Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976); Shaw v. S.S. Kresge Co., 167 Ind. App. 1, 328 N.E.2d 775 (1975). Contra, Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980).

In Heideck, the Supreme Court of Delaware disposed of a similar argument in language which is clearly applicable to the present case:

Plaintiffs assertion that the Superior Court erred in finding that defendant’s Booklet did not alter the “at will” status of her employment is, likewise, without merit. This issue is one of first impression in this Court. Other jurisdictions, however, have resolved the question against the employee at will where the booklet has been deemed to be merely a unilateral statement of company policies and where it does not set out a definite term of employment for company employees____ The Booklet in question here was issued by defendant after plaintiff began her employment. It was a unilateral expression of the defendant’s policies and procedures on a number of topics, issued for the guidance and benefit of employees. The Booklet does not grant to any employee a specific term of employment and does not, therefore, alter plaintiff’s “at will” employment status. No error was committed by the Superior Court in awarding summary judgment for defendant, (citations omitted)

Heideck v. Kent General Hospital, Inc., 446 A.2d at 1096-97.

Accordingly, this court must reject plaintiffs’ argument that the policy manual created binding contractual obligations.

2. The Implied Covenant of Good Faith and Fair Dealing

Plaintiffs’ second cause of action is for breach of an implied covenant of good faith and fair dealing in employment contracts. They argue that since a covenant of good faith and fair dealing is implied in commercial contracts in this state, such a covenant should be implied in at-will employment contracts as well. In support of their position, plaintiffs rely on Tharpe v. G.E. Moore Co., 254 S.C. 196, 174 S.E.2d 397 (1970) and Deering Milliken Research Corp. v. Textured Fibres, Inc., 310 F.Supp. 491 (D.S.C.1970). Reliance on these two cases is misplaced, however, since they are both commercial cases and do not involve employment at-will contracts.

It is not surprising that plaintiffs can cite no South Carolina cases which support their contention in an at-will employment context. For the concept of at-will employee/employer relations, with the attendant right to quit or to fire at any time, for any reason or for no reason at all, see, e.g., Ludwick v. This Minute of Carolina, Inc., 283 S.C. 149, 321 S.E.2d 618 (S.C.App.1984); Todd v. South Carolina Farm Bureau Mutual Ins. Co., 276 S.C. 284, 278 S.E.2d 607 (1981); Ross v. Life Ins. Co. of Virginia, 273 S.C. 764, 259 S.E.2d 814 (1979), is antithetical to the concept of an implied covenant of good faith and fair dealing.

Cases from other jurisdictions have recognized this precise point and have refused to extend the covenant of good faith and fair dealing found in the commercial setting to the at-will employment area. See, e.g., Fletcher v. Wesley Medical Center, 585 F.Supp. 1260 (D.Kan.1984); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983); Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983); Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (1982). Contra, Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 168 Cal.Rptr. 722 (1980).

The rationale for the refusal to extend this covenant to at-will employment contracts was set forth in Murphy v. American Home Products Corp. and it is in line with South Carolina jurisprudence in the field of at-will employment contracts:

Plaintiffs fourth cause of action is for breach of contract. Although he concedes in his complaint that his employment contract was of indefinite duration (inferentially recognizing that, were there no more, under traditional princi-' pies his employer might have discharged him at any time), he asserts that in all employment contracts the law implies an obligation on the part of the employer to deal with his employees fairly and in good faith and that a discharge in violation of that implied obligation exposes the employer to liability for breach of contract.. Seeking then to apply this proposition to the present case, plaintiff argues in substance that he was required by the terms of his employment to disclose accounting improprieties and that defendant’s discharge of him for having done so constituted a failure by the employer to act in good faith and thus a breach of the contract of employment. No New York case upholding any such broad proposition is cited to us by plaintiff (or identified by our dissenting colleague), and we know of none. New York does recognize that in appropriate circumstances an obligation of good faith and fair dealing on the part of a party to a contract may be implied, and, if implied will be enforced, [citations omitted]. In such instances the implied obligation is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship. Thus, in the case now before us, plaintiffs employment was at will, a relationship in which the law accords the employer an unfettered right to terminate the employment at any time. In the context of such an employment it would be incongruous to say that an inference may be drawn that the employer impliedly agreed to a provision which would be destructive of his right of termination. The parties may by express agreement limit or restrict the employer’s right of discharge, but to imply such a limitation from the existence of an unrestricted right would be internally inconsistent, (emphasis added).

Murphy v. American Home Products Corp., 461 N.Y.S.2d at 237, 448 N.E.2d at 91.

The recent pronouncements of the South Carolina Court of Appeals have upheld the viability of the at-will employment doctrine in this state. See, Corder v. Champion Road Machinery International Corp., 283 S.C. 520, 324 S.E.2d 79 (S.C.App.1984); Todd v. South Carolina Farm Bureau Mutual Ins. Co., 283 S.C. 155, 321 S.E.2d 602 (S.C.App.1984), and Ludwick v. This Minute of Carolina, Inc., 283 S.C. 149, 321 S.E.2d 618 (S.C.App.1984). South Carolina state courts have yet to adopt, therefore, either of the exceptions to the at-will doctrine put forth by plaintiffs in this case. This court, bound as it is by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), must grant defendant’s motion for summary judgment on these two causes of action.

3. Intentional Infliction of Emotional Distress

In their complaint, plaintiffs allege that in terminating Satterfield, “defendant, through its agents, intentionally inflicted grievious [sic], emotional harm upon the plaintiffs____” Lockheed denies this allegation and asserts that, based upon ruling case law, it is entitled to summary judgment as to this cause of action.

In Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981), the South Carolina Supreme Court formally recognized the tort of intentional infliction of emotional distress, or outrage, as set forth in § 46 of the RESTATEMENT (2d) OF TORTS. In Ford, the court set forth the elements which a plaintiff must prove in order to recover under this tort as follows:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct, RESTATEMENT (SECOND) OF TORTS § 46, Comment i; (2) the conduct was so “extreme and outrageous” as to exceed “all possible bounds of decency” and must be regarded as “atrocious, and utterly intolerable in a civilized community,” RESTATEMENT (SECOND) OF TORTS § 46, Comment d; (3) the actions of the defendant caused the plaintiff’s emotional distress; and (4) the emotional distress suffered by the plaintiff was “severe” so that “no reasonable man could be expected to endure it.” RESTATEMENT (SECOND) OF TORTS § 46, Comment j.

Ford v. Hutson, 276 S.C. at 162, 276 S.E.2d at 778.

In Todd v. South Carolina Farm Bureau Insurance Company, 283 S.C. 155, 321 S.E.2d 602 (S.C.App.1984) {Todd II), the Court of Appeals elaborated on these requirements, with particular emphasis on the requirement that the conduct be “outrageous:”

We have already established that one of the elements of the tort of outrage or intentional infliction of emotional distress is outrageous conduct. It is the legal responsibility of the court to determine whether, on the evidence before it, the defendant’s conduct may reasonably constitute outrageous conduct ... Neither the trial Court nor this court is at liberty to substitute its subjective and provincial sensibilities regarding what is reprehensible and socially intolerable conduct for the guidelines which our Supreme Court has established with its adoption of the Restatement formulation of the tort.
The Restatement Second provides at least three guidelines limiting the scope of intentional infliction of emotional distress: (1) the conduct must be “extreme and outrageous,” exceeding “all bounds of decency,” “atrocious,” and “utterly intolerable”; (2) abusive conduct by a defendant in actual or apparent authority over a plaintiff, or with power to affect the plaintiff’s interest, may give rise to a characterization of the conduct as outrageous, comment e; and (3) conduct may be adjudged outrageous because a defendant acts with knowledge that a plaintiff is peculiarly susceptible to emotional distress, comment f.
The Restatement’s repeated insistence that the conduct be extreme and outrageous is no mere happenstance. According to Professor Prosser, the Reporter for the 1965 Restatement Second, the replacement of the “privilege” test of the 1948 Restatement for one of “outrageousness” in 1965 was in response to the perceived need “for a more limited statement which will set some boundaries to the liability” for intentional infliction of distress. Prosser, Insult and Outrage, 44 Calif.L.Rev. 40 (1956). The Court cannot ignore this limitation.

Todd, 321 S.E.2d at 609-10. (emphasis added).

In the present case, the plaintiffs’ evidence fails to establish any of the four elements of the tort of intentional infliction of emotional distress, and, in particular, fails to establish that defendant’s conduct was “so extreme and outrageous as to exceed all possible bounds of decency.” A review of the relevant portions of the various depositions taken in this case establishes both the plaintiffs’ failure of proof and this defendant’s right to summary judgment as to this cause of action.

In his deposition, plaintiff Satterfield described the manner of his termination as follows:

A. Okay, When I went to work on Wednesday, Mr. McLoughlan again came out and said that Jim Shirley was here and that he wanted to see me in the office. So I had I said, “Okay. I wonder what he wants.” So I went in the office; and Jim started out by telling me, you know, what a good employee I was — that it was hard to find people — that he’d always see me out in the parking lot like a half an hour before the shift started, and I couldn’t really figure out what he was getting at. And he said, “Charlie, I hate to be the one to have to bring you this kind of news.” I said, “What do you mean Jimmy?” He said, “You’ve been found in violation of company policy.” I don’t even remember the numbers of whatever it is of coming to work under the influence of nonprescription drugs, “that I’ve been directed to tell you that you’ve been hereby terminated. You’re to give me your badge and I’m to escort you to ESB, you know, clean out your locker and all that and we’re to go.” I said, “Jim, you’re kidding me.” He said, “Charlie, I wish I was; but I’m not.” He said — and I said, “There’s got to be a mistake.” I said, “There’s no way.” He said, “Charlie, my hands are tied. There’s nothing I can do.” He said, “It’s out of my hands. I’ve just been told to do this. I have to do it.” So I cleaned out my locker and away to ESB we went____
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Q. Was there any elaboration as to how it was determined that you were in violation of company policy?
A. Well, sure. He told me that the drug screening had come back positive. That’s the only way that it could have — If they’d found me in violation, that’s the only way that it could have been.
Q. Did you all discuss that drug screen then?
A. No. He didn’t know that much about it other than what he’d been told that I’d been found in violation, that the drug screen had come back positive, and he was directed to come and get me____
Q. You went and cleaned out your locker and went up to ESB?
A. Right.
Q. What happened there?
A. That’s where he turned me over to Claude to do all the processing out.
Q. Did you have any conversation with Claude on this subject?
A. I don’t know if you could really call it a conversation or not.
Q. Well, tell me what happened?
A. I was so upset that I wasn’t in much of a shape to talk to anybody for any time of length on much of anything. But what it boiled down was when they brought the — you know, he explained that I had, you know, I could — I had so much money coming to me for “X” amount of hours and that this was due me and that was due me from the savings plan I had “X” amounts of dollars; and they had it all out on a little sheet. It was already all typed up and everything; and they had the little termination slip that said that, yeah, I had been found in violation of company policy whatever it was, and that I had been terminated. And he says, “Well Charlie, we can leave it like this, or we can do it a different way.” I said, “Well, what do you mean?” He said, “Well, we can change it to read that you terminated.” And I said, “Well, what good would that do me?” He said, “Well, if you went to apply for another job and you had to use Lockheed as a previous employer, when they call back here to ask information on you, and we can say — they say, “Well, why did he leave?” And they say, “Well, he terminated.” “Well, what kind of a worker was he?” Well, we go back and look at your work record, and that I had a good work record, that I was always on time. There was never no problem I said, gee, you know, to myself that if I’m going to find another job, well that maybe ought to be the way that I go. I said, “Well, Claude, okay. What alternatives do I have?” ... [“jNobody ever has, but you have that right to fight it.” I said, “Well, you don’t have to worry about that because you all will be hearing from my lawyer because I didn’t do anything wrong; and I’ll fight it.” [pp. 52-55]
Q. Did you have any contact with anybody else from Lockheed on that day before leaving?
A. No. [p. 58]

With regard to his first contact with Lockheed after termination, Satterfield stated:

A. It was about two weeks later____ So we sent this letter off to Sunnyvale and about two weeks we got a reply from them saying that Lockheed had open-door policy and that if we felt that strongly about, you know, this situation, that it was not the people in Sunnyvale to make the decision but the people at POMFLANT and to go ahead and contact them and to set up a meeting, [pp. 59-60]
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Q. What did you do?
A. So we contacted Claude — or I contacted Claude, and I explained to him that we had sent a letter off to Sunnyvale, and we had got a reply back that they had the open-door policy and that they felt that we should go ahead and try and set up a meeting between me and the people at POMFLANT to hear my side of the story.
* * * * % *
Q. What happened after that?
A. Well, we made the appointment for me to go see Mr. Myers and so—
Q. Just for the record, who is he?
A. He is the base manager for Lockheed. So I went and I told Chuck just what I told you.
Q. Chuck Myers?
A. Right. That we felt there had been a mistake, and I told him about the two urine samples and all of that; and he said, “Yeah,” that he felt that if what I was saying was true, that it did indeed warrant an investigation and some looking into; and I had taken the urinalysis that Dr. Baggett had done and the drug screening that Pathologist Associates had done to show them, you know, that both of them were negative, and this was done a week or so after what the one that they had said had all of these things wrong with me. [pp. 61-62]

Concerning his “open-door” meeting with Charles Myers of Lockheed, Satterfield testified:

Q. You told him that you understood that Lockheed had an open-door policy, and that’s why you were here and talked about these things?
A. Right.
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Q. What did Mr. Myers say to you when you had that meeting with him? You’ve told me what you told him. Now I’m just trying to find out what he said?
A. He told me that after listening to what I had to say, he thought I had a legitimate reason for them to look into the situation that he felt maybe there was a chance that I got a bum deal, you know; and that he felt that it warranted investigation. I said, “That's great, you know, that's all I’d like to get, you know, because I’d like to get it cleared up.” So he said, “Let me, you know, give me a little time. I’ll get back with you.” I said, “Okay.” So two weeks went by; and we never heard anything, so I called him. He says, “Well, I’m having a little trouble to get in to talk to the people at Trident Industrial Medicine. You know, one’s been out of town and they’ve been in meetings and they’ve been this or I’ve had to do other things.” And I said, “Well, did you talk to Dr. Baggett or to Bruce Sheridan?” And he said, “No. I haven’t done that yet.” And I said, “Well, you know, I really wish you would talk to these people before you talk to the people at Trident Industrial Medicine.” Well, he said, “Okay. We’ll try and get that done.” So he says, “Give me a couple of days,” he says, “I’ll get back to you.” Well, two or three days and we still haven’t heard anything from him. So I call him back again. I said, “Mr. Myers, have you talked to any of these people?” He said, “No. I’ve got a meeting to go to this afternoon to talk to Mr. Moore at Trident.” And I said, “Well, have you talked to Dr. Baggett or Bruce yet?” And he said, “No. But I’m going to do that.” And I said, you know, “I really wish you would do that before you talk to Trident to get my side of what’s happening to verify that I’m not just trying to pull your leg with what I’ve told you, you know.” And I think he still talked to Trident first before he ever talked to Dr. Baggett and he finally talked to Bruce and it really upset Bruce because he practically called Bruce a liar at what Bruce told him happened the day he went — what Bruce told him wasn’t true that he was just trying to cover up for me. And it really upset Bruce because Bruce is a good Christian, and he wouldn’t lie. I don’t care for anybody — who it was — Bruce won’t tell a lié for you; and I wouldn’t ask him to do that anyway. But it really upset him. He said, “Charlie, he didn’t believe a word I told him.” I said, “Well, Bruce, there’s nothing we can do. It’s all — If they believe it, they believe it. If they won’t believe it, fine. If not, we’ll just go to court, that’s all because I didn’t anything wrong; and I’m not going to let them say that I did do anything when I didn’t.” So about two or three days I hear from Chuck— Well, I finally had to call him back again because he never did really call me — and he said, well, that he did talk to Dr. Moore and that Dr. Moore had told him that he didn’t find it unusual that the second urinalysis had been negative. That it was just probably the urinary tract was dirty and that was the reason that they found all that stuff in the urine to begin with and that he had talked to some of the lab people at Lockheed and Sunnyvale.
Q. Who’s “he” when you say he had talked to?
A. Mr. Myers had called the lab. I don’t know. He didn’t say specifically what lab or who that he had talked to some of the lab people in Sunnyvale and that from what he had talked to Dr. Baggett that he didn’t see that there was any reason at all for them to reverse their decision. I said, “Well, that’s fine. If that’s how you feel then we’ll go from here,” and hung up the phone; and that was it.” [pp. 73, 75-78]

Finally, with regard to the alleged “grievous emotional harm” suffered by him as a result of the termination, Satterfield stated:

A. Well, how would you feel if you had just bought a new home. You’d just moved into it. You’d just put about every penny that you were making into putting in a new yard and getting everything the way that you wanted it; and things were just starting to look up, and you went to work and bam they told you that you were fired. And from what you knew, there was really no good reason at all. Just out of the clear blue sky. Everything is running along smooth. You haven’t had any trouble at work. One day you go to work and you’re making 30 or $40,-000 a year. Well, the next day, you’re down to zip wad, nothing. What kind of an impact, you know, emotionally would that have on you? Pm a pretty strong guy emotionally, but you could have knocked me over with a feather. I was really shook up about it; and with my wife being a diabetic and in sort of poor health to begin with, it sure didn’t help her at all.
Q. How did it affect your health?
A. For a couple of weeks I was pretty shook up, you know, I was pretty down in the dumps about the whole thing. I had an $800-a-month house payment that we were going to have to make and no money to make it. We had other commitments that we were going to have to meet, and no money coming in. What were we going to do? Where were we going to turn?
Q. Did you have any physical symptoms?
A. Not really. I mean not deathly sick or anything like that other than maybe just nerves and a little shook up. I’m pretty strong emotionally, but it was still something that really just devastated you.” [pp. 88-89]

This testimony constitutes the only evidence plaintiffs can offer in support of their contention that defendant’s conduct in terminating Satterfield somehow amounted to conduct “so extreme and outrageous as to exceed all possible bounds of decency.”

Following Todd II, it is this court’s responsibility to determine whether defendant’s conduct in a given instance may “reasonably constitute outrageous conduct.” This court is of the opinion that the testimony establishes conclusively that Lockheed did not act outrageously toward the plaintiffs and, in fact, that it acted properly and within the parameters of civilized conduct in terminating Satterfield. Accordingly, Lockheed’s motion for summary judgment should be granted as to this cause of action.

4. Invasion of Privacy

As their fourth cause of action, the plaintiffs allege that Lockheed invaded their privacy. The complaint in Corder v. Champion Road Machinery International Corp., 283 S.C. 520, 324 S.E.2d 79 (S.C. App.1984), also contained allegations of invasion of privacy. The Court of Appeals set forth the elements of that cause of action:

In order to state a cause of action for this tort the plaintiff must allege: (1) the unwarranted appropriation or exploitation of his personality; or (2) the publicizing of his private affairs with which the public has no legitimate concern; or (3) the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”

Corder, 324 S.E.2d at 82.

It is unclear from plaintiffs’ complaint which of the three grounds they are relying upon in this case. Clearly, however, an unwarranted appropriation or exploitation of plaintiffs’ personalities is not involved. Presumably, therefore, plaintiffs are claiming either the publicizing of private affairs or the wrongful intrusion into their private activities.

In Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 (S.C.App.1984), the Court of Appeals set forth succinctly the standard of proof required under both these theories:

Under a cause of action for the “publicizing of one’s private affairs with which the public has no legitimate concern” (emphasis added), an essential element of recovery is a showing of a public disclosure of private facts. Beard v. Akzona, Inc., 517 F.Supp. 128 (E.D.Tenn.1981). The disclosure of private facts must be a public disclosure, and not a private one; there must be, in other words, publicity. Harrison v. Humble Oil, 264 F.Supp. 89 (D.S.C.1967). It is publicity, as opposed to publication, that gives rise to a cause of action for invasion of privacy. Tureen v. Equifax, Inc., 571 F.2d 411 (8th Cir.1978); Todd v. S.C. Farm Bureau, supra. Communication to a single individual or to a small group of people, absent a breach of contract, trust, or other confidential relationship, will not give rise to liability. Harrison v. Humble Oil, supra; Beard v. Akzona, Inc., supra; Tureen v. Equifax, Inc., supra; Peacock v. Retail Credit Co., 302 F.Supp. 418 (N.D.Ga.1969), aff’d, 429 F.2d 31 (5th Cir.1970)....
When a plaintiff bases an action for invasion of privacy on “intrusion” alone, bringing forth no evidence of public disclosure, it is incumbent upon him to show a blatant and shocking disregard of his rights, and serious mental or physical injury or humiliation to himself resulting therefrom. Shorter v. Retail Credit Co., 251 F.Supp. 329 (D.S.C.1966).”

Rycroft, 314 S.E.2d at 43.

The court finds that the evidence in this case will not support a finding under either of these theories of invasion of privacy.

With regard to the “publicizing of one’s private affairs” cause of action, the testimony is uniform that defendant did not publicize the results of the test in question; nor did it publicize the fact of Satterfield’s termination or the reason therefor. In fact, Satterfield’s own deposition testimony corroborates this fact. In addition, Lockheed’s agent, Charles Myers, was questioned directly concerning who he would have informed about the decision to terminate Satterfield; and he specifically denied providing any information to anyone in the general public.

In short, the only evidence indicating that Satterfield’s termination was publicized suggests that Satterfield himself did the “publicizing.” The evidence in this case will not support a finding that defendant publicized plaintiffs’ private affairs and defendant is entitled to summary judgment on this ground.

It is, therefore,

ORDERED, that summary judgment be, and the same is hereby, entered for the defendant, Lockheed Missiles and Space Company, Inc. It is

ORDERED FURTHER, that plaintiffs and defendant Lockheed shall each bear their own costs. It is

ORDERED FURTHER, that the third-party complaint and all cross-claims be, and the same are hereby, dismissed. It is

ORDERED FURTHER, that each of the parties to the third-party action shall bear their own costs.

AND IT IS SO ORDERED.


author: MILES W. LORD, District Judge.

text:
    Elroy MUEHLER, Richard A. Price, Alvin Jochim, Terry Luehring, Edgar Luehring, Russell Kolberg, Don Helfter, Michael L. Huisman and Doolittle Turkey Farm, Inc., on behalf of themselves and all others similarly situated, Plaintiffs, v. LAND O’LAKES, INC., a Minnesota corporation, Defendant.
    No. 4-83 Civil 600.
    United States District Court, D. Minnesota, Fourth Division.
    Sept. 10, 1985.

      Robins, Zelle, Larson & Kaplan, Stanford Robins and Brent L. Reichert, Minneapolis, Minn., Meyer, Meyer & Pottratz, Mark H. Meyer, Melrose, Minn., for plaintiffs; Letnes, Marshall, Fiedler & Clapp, Jay H. Fiedler, Grand Forks, N.D., of counsel.
    Doherty, Rumble & Butler, Frank Claybourne and Thomas A. Connop, St. Paul, Minn., for defendant.
    Bottorff & Van Doren, Kieth Van Doren, Webster City, Iowa, for Webster City Production Credit Assn.
   MEMORANDUM DECISION AND ORDER

MILES W. LORD, District Judge.

Plaintiffs’ attorneys have appealed pursuant to 28 U.S.C. § 636(c)(4), and Local Rule 14 G(5)(b), from a United States Magistrate’s Memorandum Decision and Order dated August 16,1985, awarding attorneys’ fees, costs and expenses in the above-entitled matter.

This action was originally commenced in the United States District Court, District of North Dakota, in April, 1982, by ten turkey growers, on behalf of themselves and others similarly situated. Prior to 1980, defendant Land O’Lakes, Inc. had purchased turkeys outright from its cooperative members at the current market rate, and had processed and marketed the turkeys as an independent operation. For the 1980 processing season, Land O’Lakes had instituted a marketing arrangement whereby turkeys received from its grower-members were “pooled” for marketing. Under the pool arrangement, Land O’Lakes processed and marketed the turkeys, and the producers were paid a pro rata share of the proceeds received by Land O’Lakes, less administrative and marketing costs. The claim for relief is essentially based upon allegations that Land O’Lakes breached the marketing agreement with the growers that established the pool arrangement, breached a fiduciary duty owed to the growers, and violated a state statute relating to cooperative marketing agreements.

On July 11, 1983, the North Dakota District Court entered an order certifying the case as a class action to be maintained on behalf of a class composed of all turkey growers who sold turkeys to defendant and received payment through the 1980 Cooperative Marketing Pool, with the exception of growers who furnished turkeys for processing from breeder flocks, and growers who participated in a certain Land O’Lakes “contract grow-out program.” The certification order also changed the venue, transferring the case to the District of Minnesota.

The parties engaged in extensive and exhaustive discovery, pre-trial proceedings, and settlement negotiations during the following two and one-half years. In December, 1984, in an attempt to avoid a protracted trial, this Court convened a “mini-trial” (a summary trial to an advisory jury). A 12 person jury was formally impaneled, and over the course of several days, counsel informally presented the case by proffer of evidence, examination and cross-examination of witnesses, and introduction of exhibits. Counsel formally presented closing arguments, the Court delivered an abbreviated charge, and the panel was split into two six-person juries to deliberate and render a verdict on special interrogatories. Plaintiffs had argued for $4,802,604.00 in damages. Most of the damage claim ($2,800,000.00) depended upon the jurors’ responses to sharply conflicting opinions of expert accounting witnesses. Of the remaining request, $1,580,000.00 was subject to the risk of being denied as a matter of law prior to an actual trial.

The results of the mini-trial were ambiguous. One jury panel found no liability, which would mandate a defendant’s verdict. The other panel returned a verdict for plaintiffs in the amount of $2,292,-000.00. Three jurors on this panel also assessed an additional $210,000.00 as punitive damages.

Potential class member growers, accounting for 13% of the total liveweight of turkeys that had been contributed to the Pool, had opted-out of the class action. Since the verdicts in the mini-trial were based on the damages to the entire marketing pool, an adjustment would have to be made for the volume represented by the opt-outs. Adjusting for the volume represented by the opt-outs yields a potential range of net verdicts from zero to $1,994,-258.00 for the class members.

Following the return of these verdicts, the Court and counsel took the opportunity to review with the jury their impressions of the case as presented in the mini-trial format. Thereafter, the case was assigned to a United States Magistrate pursuant to the provisions of Title 28 U.S.C. § 636(c), and a number of motions were filed or renewed. Both sides obviously recognized that considerable work and expense would be necessary to obtain further discovery, bolster positions, and to muster new arguments in preparation for further pre-trial proceedings and for trial. During the ensuing six months, earnest settlement negotiations were conducted. Ultimately, a settlement agreement was signed on June 18, 1985.

The proposed settlement requires defendant to pay $1,550,000.00 in full settlement of all class claims, from which will be deducted fees for attorneys for the class, litigation expenses, and interest on out-of-pocket expenses contributed by certain members of the class to form a litigation fund. The balance of the payment will be paid to members of the class pro rata, based upon the liveweight pounds of turkeys delivered to the 1980 Pool, and subject to the right of set-off by Land O’Lakes against proceeds payable to any individual class member arising from advances made or delinquent trade accounts.

Based upon the risk factors, a reasonable estimate of maximum recovery, the novel theories advanced by plaintiffs to support the cause of action, and other relevant factors, the Magistrate ruled that the proposed settlement and the compromise payment of $1,550,000.00 was fair, reasonable and in the best interests of all of the growers affected by the settlement and by dismissal of this action. Because no one has (1) requested a review of this portion of the Magistrate’s Order and (2) because it is based upon sound rationale and reasoning, the ruling that the settlement be approved is adopted.

ATTORNEYS’ FEES

The attorneys for the plaintiff class have requested review and modification of the Magistrate’s Decision and Order awarding attorneys’ fees, costs and expenses. Because the class representatives and their attorneys successfully recovered a fund for the benefit of all class members, an award of fees to counsel for the class from that fund is appropriate. See, Boeing Co. v. Van Gemert, 444 U.S. 472, 481-82, 100 S.Ct. 745, 750-51, 62 L.Ed.2d 676 (1980).

In support of the fee application the three law firms representing the class originally submitted a great deal of documentation to the Court including a Joint Fee Petition, supporting affidavits of the attorneys, daily time records, affidavits of the class representatives expressly ratifying the proposed settlement, and a report from Weinberg & Associates, Ltd., certified public accountants, showing the allocation of out-of-pocket costs and expenses. Additional material has been submitted pursuant to this proceeding.

In their Joint Petition, the three firms requested the following fees:

Robins, Zelle, Larson & Kaplan
a. Number of attorney hours - 3,921.40
b. Number of para-professional hours - 1,691.80
Total Fees Pursuant to Current Hourly
Billing Rates $508,091.00
Fees Requested $460,850.00
Meyer, Meyer & Pottratz
Number of attorney hours - 608.80
Total Fees Pursuant to Current Hourly
Billing Rates $ 54,792.00
Fees Requested $ 54,792.00
Letness, Marshall, Fiedler & Clapp, Ltd.
Number of attorney hours - 326.20
Total Fees Pursuant to Current Hourly
Billing Rates $ 29,358.00
Fees Requested $ 29,358.00

The firms also sought reimbursement of litigation costs and expenses in the amount of $79,342.09. This amount was compiled by Weinberg and Associates, Ltd., certified public accountants. Certain class members also requested interest on the funds they had contributed prior to the commencement of the litigation. The total interest payment requested was $23,276.19, calculated at a rate of 11% per annum to be paid pro rata to the thirty-one contributing class members.

The attorneys for the class did not seek a multiplier on their time although they were entitled to receive a multiplier under applicable federal law. City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.1977); Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3d Cir.1976); Lindy Brothers Builders Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973). Counsel only sought compensation figured at their current hourly billing rates. In fact, in order to remain within the 35.5% limit set forth in the notice to the class, the lead counsel law firm (Robins) actually discounted the lodestar value of its time by $47,241.00.

Letnes, Marshall, Fiedler & Clapp, Ltd. were awarded compensation for only 205.4 hours at $90.00 per hour and for three hours at $60.00 per hour, a total of $18,-666.00. Meyer, Meyer & Pottratz were awarded compensation for only 251.6 hours at $90.00 per hour, and for 110.5 hours at $60.00 per hour, a total of $29,274.00. The Magistrate awarded Robins, Zelle, Larson & Kaplan $449,611.00 in attorneys’ fees but noted that the discount of $11,289.00 might be an error, and suggested a motion to reconsider this particular finding might be appropriate.

The standards set forth in In re Fine Paper Antitrust Litigation, 98 F.R.D. 48 (E.D.Pa.1983), modified 751 F.2d 562 (3d Cir.1984) served as the basis for the decision limiting attorneys fees. The rigid application of Fine Paper is inappropriate in this instance. Three law firms handled the case from start to finish. One firm, Robins, Zelle, Larson & Kaplan, served as lead counsel. The two other firms, Meyer, Meyer & Pottratz from Melrose, Minnesota, and Letnes, Marshall, Fiedler & Clapp from Grand Forks, North Dakota directly represented substantial groups of class members, and played an important supplementary role in conducting the litigation. Counsel filed a joint petition which clearly delineated their respective mutually supportive roles in the litigation. For the most part, four lawyers were involved in the representation of the plaintiffs: Stanford Robins and Brent Reichert from the Robins firm who acted as lead counsel; and Mark H. Meyer and Jay H. Fiedler who served in a supplementary capacity based on their direct involvement with grower clients. Overall, Mr. Robins and Mr. Reichert have done an efficient and expeditious job of coordinating and allocating their professional and paraprofessional resources. Mr. Meyer and Mr. Fiedler had a more limited role, but performed an important advisory and liaison function, indispensable to achieving the most effective representation of the class.

The class members received notice of the amount of the attorneys’ fees requested and no objections were filed or voiced at the hearing regarding the approval of the settlement and attorneys’ fees. The turkey growers in this class are sophisticated businesspeople, who possessed the degree of knowledge and ability sufficient to raise an objection if they believed the fee application was excessive.

In the instant matter portions of the fee requests from Messrs. Meyer & Fiedler were disallowed on the premise that there was insufficient showing that the recorded time benefitted the class. The Magistrate, applying rather literally the measures adopted by the district court in the Fine Paper litigation, held that it was only necessary for lead counsel to attend depositions and hearings on behalf of the plaintiffs. Accordingly, the Magistrate found that the presence of Mr. Meyer and Mr. Fiedler at some of the depositions and many of the hearings was duplicative, and of less value to the class than the presence of lead counsel. This approach, under the circumstances of this case, would have the effect of: (1) depriving some of the class members who were most instrumental in initiating the case of the services of their own regular attorney to monitor the activities of lead counsel; (2) depriving lead counsel of the assistance, liaison and insight provided by the local attorneys who more directly represent the class members on a regular basis; and (3) creating the potential in future cases of putting the plaintiffs in class actions at a distinct disadvantage against large defendants who often utilize a legion of attorneys to handle their defense.

This Court presided over many pretrial proceedings, the discussions leading up to the mini-trial as well as the mini-trial itself. This Court’s direct observation during these proceedings, together with the material submitted, convinces the Court that the handling of the plaintiffs’ case here has been very efficient. Counsel for the class have also made every effort, some extraordinary, to cooperate with the Court, espedally with respect to the mini-trial held in December 1984. This mini-trial, which was held at the Court’s request, required all the parties involved to put forth tremendous effort.

The Affidavits submitted in support of this review clearly establish that the efforts of local counsel, Jay H. Fiedler and Mark H. Meyer, directly benefitted the class, and were not merely duplicative of the efforts of the lead counsel. In fact both Messrs. Meyer and Fiedler made considerable efforts not to duplicate the efforts of the Robins law firm and attended hearings, conferences and depositions only when their presence would benefit the class, and was requested by lead counsel. Based upon this Court’s knowledge of the involvement of Messrs. Fiedler and Meyer in this litigation and the complicated issues involved, this Court finds that each attorney is entitled to the full amount of fees requested from the common fund. As for the $11,239.00 deducted from the fee application of the Robins firm, this Court finds, consistent with the Magistrate’s suggestion, that it was deducted in error and that Robins should be awarded the full $460,-850.00 requested. This award of fees is extremely reasonable when considering the result achieved, the efforts of counsel, the fact that the Robins law firm has discounted the lodestar value of its time by $47,-241.00, and the fact that counsel is not claiming a multiplier of the lodestar.

GENERAL OBSERVATIONS

The ease at bar provides a perfect illustration of a general observation I feel constrained to make. The nation’s state and federal courts cannot provide a remedy for every social ill, but my many years on the federal bench have served to reinforce my life-long conviction that when the legislature or the judiciary act to limit access to the courts, they do so at grave peril to our social fabric. One alternative to the orderly resolution of disputes through the courts is violence and anarchy. I believe this observation applies with particular force to the mechanism of the class action because it was designed to provide, in a single expeditious proceeding, a means of redress in those circumstances where many have suffered a common injury.

The contingent fee and the class action are “the poor man’s keys to the courthouse.” Both vehicles allow the average citizen and taxpayer to have their injuries redressed and their rights protected. Both permit persons of limited resources to obtain competent legal counsel, an essential ingredient in our adversary system of justice. And both are under constant attack.

Time and again in the fields of civil rights, the environment, antitrust, securities, consumer protection, and administrative law, people who have been cheated, deprived of basic rights, physically injured, or otherwise disadvantaged have found their only remedy, or their best remedy through a class action. The annals of class action case law are replete with examples of lawyers who were willing to commit their personal resources over a substantial period of time to represent a class of injured plaintiffs, motivated only by the incentive that if they succeeded in vindicating the rights of their class clients, they would be paid an attorney’s fee at least commensurate with what they would have received for winning an equivalent sum representing but a single client. Often, these suits are brought against companies with resources that allow them to retain squadrons of top-flight lawyers, and all of the technological paraphenalia and human resources that have become characteristic of modern litigation.

The judiciary have not always been receptive to creative and efficient ways to vindicate the rights of large groups of victims. We have now seen that many judges openly and on the record have suspicion and disdain for class actions as a means of redress. Yet, when resourceful and industrious lawyers for the class successfully negotiate tremendous obstacles and achieve a recovery for the class, these same judges undergo a miraculous transformation. Now, with a newly-discovered zest for the rights of the class members, they feel duty-bound to protect the class from the very attorneys who, at considerable risk, and sometimes at some personal sacrifice, have just brought the case to a successful conclusion. By a rigorous, harsh, and often distorted application of the criteria the courts have developed over the years to weigh the factors that will help to measure the fairness and adequacy of attorneys’ fees, they attack the fee applications as though the lawyers for the class have not just vindicated their client’s rights, but have, instead, engaged in a systematic exercise to exploit and victimize the claimants. The result is usually to severely reduce and sometimes to deny just compensation to lawyers whose efforts have enhanced the role of the federal courts as an effective tribunal for the resolution of social conflict. Such actions have already gone a long way toward sounding the “death knell” for class actions. Cf., Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

Those individuals or companies who have or may in the future become defendants have found the “Achilles heel” of the class action. The arrows they use to pierce it are the recent attacks on attorneys’ fees awarded to successful plaintiffs’ lawyers in class action litigation. If the plaintiffs’ bar is not adequately compensated for its risk, responsibility, and effort when it is successful, then effective representation for plaintiffs in these cases will disappear.

While it is easy to understand the motivation as to why industry and those who represent large entities attack the class action and the contingent fee, it is more difficult to understand why these obviously self-serving arguments from a rather narrow cross section of society are not rejected out of hand by the judiciary, consistent with its duty to represent the interest of all citizens and litigants. To some extent, the judicial hostility may merely reflect the judiciary’s traditional negative reaction to new ideas, procedures and approaches. The law and the legal system is precedent-based, and thus the status quo is comfortable. The rights of the poor and the oppressed were not always protected by the legislature and the judiciary. Our society has grudgingly granted access to legal services and to the courts to redress grievances for the impoverished and the downtrodden. It is rather a new phenomenon that those national companies that have caused widespread harm to hundreds or thousands of individuals throughout the country can now be called to task by these injured citizens, and these same corporate coffers, filled at the injured parties’ expense, depleted. It may take some time for the judiciary to adjust to this new phenomenon and enthusiastically accept the responsibility imposed upon it by the promulgators of Fed.R.Civ.P. 23.

We as members of the judiciary must be ever watchful to avoid being isolated from the experience of those who are actively engaged in the practice of law. It is difficult to evaluate the effort it takes to successfully and ethically prosecute a large plaintiffs’ class action suit. It is an experience in which few of us have participated. The dimensions of the undertaking are awesome. The time and effort expended test the ability of many lawyers to survive during the lifetime of the action. Some plaintiffs’ lawyers have worked on cases before me for as long as ten years and spent a substantial portion of their billable time each year on the effort. At the end they may have received a fee in the millions of dollars. However, averaged out over the years and subtracting taxes and the expenses of a law office, it averages out to a very moderate payment. It certainly does not equate with any bonanza or pot of gold.

A prime example of judicial hostility is the trial court opinion In re Fine Paper Antitrust Litigation, 98 F.R.D. 48 (E.D. Pa., 1983). Although the decision was modified on appeal, 751 F.2d 562 (3d Cir. 1984), it serves for many as a focal point for the assault on plaintiffs’ attorneys’ fees. The initial sentence of the 170-page opinion focuses on a quote that “critics have challenged the altruism of some class action lawyers and charged that the paramount motivation for such litigation was counsel’s desire to generate substantial fees.” The proposition is a straw man. Counsel for class plaintiffs are not required to be motivated by altruism. Representation of a class of injured persons is not a pro bono act, compelled by a duty to the system of justice. The lawyers for a class of plaintiffs serve justice best when they are able to earn a living at their profession. The concern should be to provide class action plaintiffs’ lawyers with incentives enough to adequately and vigorously represent clients within the bounds of professional responsibility. To say that the plaintiffs’ bar, or, for that matter, the defendants’ bar, is not altruistic says nothing as to whether they perform a vital function in our society. Nor does it speak to the essential fact that to continue to assure that this function will be carried out in the future, the courts must ensure that counsel receive adequate compensation for the effort they put forth, the result they achieve, the benefit they bestow on the class, and the risk they take in prosecuting this type of case.

To consider altruism as an impelling or even important factor in motivating the plaintiffs’ bar reflects a myopic or distorted view of the realities of the practice of law. Nonetheless, the results of cases like Fine Paper tend to require altruism and pro bono work on the part of the plaintiffs’ bar if they fail to adequately compensate lawyers for their efforts. Only lawyers with altruistic motives and sufficient independent wealth to support such altruism will be able to engage in this type of litigation on the plaintiffs’ behalf. There may be in the profession some lawyers who can support themselves, their families, their law offices, associates, para-legals, secretaries and investigators over periods of at least three years and sometimes as long as 10 years while expenses accrue and no income is forthcoming. These same altruistic lawyers under this hypothesis can look forward to no substantial payoff but do stand in jeopardy of losing their total investment. Even if they win, they stand to lose should the court, with perfect hindsight, decide that some efforts were unnecessary or unproductive.

The second sentence in the Fine Paper opinion purports to be paraphrasing Professor Arthur Miller of Harvard University. The opinion states:

Indeed it is a “widely held notion” that in settled class actions particularly in the securities and treble damage antitrust context, the great bulk of the money received from the defendants is not distributed to class members, but rather is “devoured by avaricious attorneys” who demand astronomical attorneys’ fees.

Citing Miller, Of Frankenstein Monsters and Shining Knights; Myth, Reality, and the Class Action Problem, 92 Harv.L.Rev. 664, 667 (1979). The purported paraphrasing from Professor Miller is taken out of context. Miller’s statement, in fact, is:

The empirical evidence also implies that in settled class actions, particularly in the securities and treble damage antitrust contexts, the great bulk of the money received from the defendants actually is distributed to the class members, in contrast to the widely held notion that the fund is either devoured by avaricious attorneys or consumed by administrative expenses. (Emphasis added)

Miller, Id. at 667. Ironically, a common theme throughout this article is that much of the criticism of class actions consists of overstated • assertions and isolated ancedotes that are continuously recycled, and that careful analysis indicates that the class action is accomplishing its essential purposes. Id. at 666.

The third sentence of the opinion includes a quote from the Court of Appeals for the Second Circuit (Van Gemert v. Boeing Co., 573 F.2d 733, 735-36 (2d Cir.1978), aff'd, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980)), repeating the frequently used phrase that class actions are “termed by some as lawyers’ lawsuits ...” The source of this quote is a magazine article in Juris Doctor, “The Class Action Bar — It’s All Cat and Mouse” by Frederick Andrews. (January, 1974). Andrews attributes an unidentified young lawyer as the source of this statement — hardly a source which any court of law should elevate to the status of authority for the exercise of its judicial function. Nonetheless, this statement, the mischaraeterization of Miller’s statement, and mistaken notions of altruism set the tone for the court’s attack on the plaintiffs’ bar. They also apparently form the basis for the opinion expressed by the court that there are “widely held, but most unfavorable impressions of the plaintiffs’ class action bar.” Fine Paper, 98 F.R.D. at 67.

Who is dissatisfied with the plaintiffs’ bar? How widespread is this dissatisfaction? Certainly the millions of consumers and victims who have received their just compensation through the efforts, competence and risks taken by the plaintiffs’ bar are not dissatisfied. In a survey of approximately 900,000 recipients of a six-state settlement in In Re Antibiotics Antitrust Action, 410 F.Supp. 706 (D.Minn.1975), the overwhelming majority of the respondents were satisfied with the process and with their amount of refund which, in most cases, was less than $30.00. Most of these respondents understood the necessity and importance of paying the attorneys who procured the award. When asked what would be a fair amount, in percentage terms, to award the plaintiffs’ lawyers in this case, fifty percent of the respondents agreed that fees in the 10-25% range would be fair. T. Bartsh, F. Boddy, B. King and P. Thompson, A Class Action Suit That Worked (1978), pp. 94-95, 124-26.

I have presided over a great deal of complex litigation and have considered fee applications in numerous cases. See e.g. McDonald v. Johnson & Johnson, 546 F.Supp. 324 (D.Minn.1982); Rajender v. University of Minnesota, 546 F.Supp. 158 (D.Minn.1982); Vickerman v. Hennepin County Probate Court, 543 F.Supp. 165 (D.Minn.1982); Jorstad v. IDS Realty Trust, 489 F.Supp. 1180 (D.Minn.1980); Anderson v. United Paperworks International Union, 484 F.Supp. 76 (D.Minn. 1980); Mead v. U.S. Fidelity and Guaranty Co., 442 F.Supp. 102 (D.Minn.1977); Rockler & Co., Inc. v. Minneapolis Shareholders Co., 425 F.Supp. 145 (D.Minn.1977); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 680 (D.Minn.1975); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 659 (D.Minn.1974); In re Coordinated Pretrial Proceedings In Antibiotic Antitrust Actions, 410 F.Supp. 669 (D.Minn.1974); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 704 (D.Minn.1975); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 706 (D.Minn.1975); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 722 (D.Minn.1975). My personal experience is that the plaintiffs’ class action bar is responsible, ethical, and a credit to the legal profession. Of course, there are examples where a plaintiffs’ lawyer has crossed the line, just as there are instances where defense lawyers have engaged in dilatory tatics or other unprofessional behavior. Perhaps some of the attorneys in Fine Paper acted improperly. Early judicial intervention can often prevent this type of conduct. In any event it is inappropriate to castigate and penalize a whole class of hard-working professional attorneys on either side because of the isolated transgressions of a few. Even if there were such a “widely held” negative view of the plaintiffs’ bar, judges should set the record straight, not perpetuate misinformation and unsubstantiated hearsay detrimental to the professional bar and the operation of justice.

The purpose of the fee award is to compensate the successful lawyer for the benefit he has conferred on the class, for the risk he has taken in prosecuting a frequently long and complex case, and for the hours and expenses he has spent on the ease. “Adequate compensation is necessary ... to enable an attorney to serve his client effectively and preserve the integrity and independence of the profession.” Johnson v. Georgia Highway Express, 488 F.2d 714, 719-20 (5th Cir.1974). See also Alpine Pharmacy, Inc. v. Charles Pfizer & Co., Inc., 481 F.2d 1045 (2d Cir.1973). The attorney has earned his fee. He does not stand as a beggar seeking charity or, for that matter, judicial altruism. It is the duty of the court to adequately compensate. Just as too great an award might be unfair to the class members, too small am award is detrimental to these lawyers, the legal profession, and society at large.

Certainly lawyers should be required to document their fee requests, but the courts must not place an insurmountable or unfair burden on counsel. In the first place, we have not compensated counsel for filing their fee applications. In a sense, we have forced them to donate their time in order to recover what is rightfully theirs. If we place too heavy a burden on attorneys to demonstrate why each telephone call, conference or memorandum actually had some real benefit to the class, we create a morass. “It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney.” City of Detroit v. Grinell Corp., 495 F.2d 448, at 473 (2d Cir.1974); Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir.1974). Competent counsel should leave no stone unturned in these large cases. Some lines of inquiry may lead to dead ends and, in retrospect, may appear to be of no benefit. At the planning stage, the inquiry may have appeared to be very necessary to competent and thorough counsel. How can a court be in a position to second guess counsels’ litigation strategy?

By and large, when an attorney represents to the court that he or she has searched his client’s files and has produced all documents responsive to a discovery request, we accept the representation at face value, as we do other representations of counsel throughout the trial process. Why do we not treat the plaintiffs’ attorneys’ representations that the work was done for the benefit of the class in the same manner?

To what extent should the federal judiciary become involved in the tactics and distribution of work by plaintiffs’ attorneys in prosecuting one of these large cases? Are the courts really in a position to know what type of work is better suited for a senior partner as opposed to an associate? It would perhaps be more cost effective if all senior partners engaged in research on the cases they are litigating. That added efficiency underlies the rationale for paying senior partners at a higher rate. Yet, some federal courts take the view that only associates, those who are not going to appear in court and argue the case, should engage in research.

Some federal judges have concluded that the second attorney at a deposition is not valuable and should not be paid as much as the person conducting the deposition. It is my .experience and the experience of many seasoned litigators who, in fact, take depositions, that the second person at the deposition may have information an’d background which makes their attendance extremely valuable. Furthermore, in complex litigation involving lawyers from different law firms representing a wide variety of clients, the analogy to the traditional junior associate second chairing his or her senior partner, both representing one client or point of view, is inappropriate.

Competent plaintiffs’ counsel are in the best position to determine how their time and the time of their associates can best be allocated. I know of no competent lawyers who will choose to leave their law offices, buy an airline ticket or take a lengthy drive in order to travel to another city and sit in on a deposition, unless they believe that their presence at the deposition is necessary. I cannot conceive of a lawyer who would make such a decision solely for the purpose of building up billable hours on a contingent fee case, with no assurance of obtaining any fee at all if the case is not successfully concluded.

Attorneys representing class members take on tremendous responsibility. They have an obligation to represent all of the interests of their clients in a competent and vigorous representation. These clients are entitled to the same quality of representation as the defendant would expect from its lawyers. As evidence of the appropriate standard of practice and the value of representation, it might be useful to consider what a defendant is willing to pay for and how many lawyers a defendant is willing to send to represent it at depositions or court appearances. If there is just one defendant and one law firm involved, the need for multiple counsel may be less compelling on the defense side of the case. Nonetheless, it certainly is not unusual, and in fact, is the accepted practice that numerous defense lawyers appear at depositions and hearings. In the Antibiotics Antitrust Litigation, this Court was called upon to pay plaintiffs’ counsel from common funds equalling millions of dollars. This Court, there on the record, inquired of defendants’ counsel concerning the number of attorneys being employed at any one time in the defense of the class action before the Court. One New York defense firm disclosed that it had seventeen lawyers and seventeen para-legals billing hours to the defendants at all times. The several other defense firms proferred similar estimates which caused the Court to conclude that as many as 250-300 lawyers (not including dozens of in-house counsel) were working together to defend these cases.

The defense lawyers in these cases are frequently highly competent, highly compensated and provided with a substantial budget to defend these cases. The Federal Courts should not encourage a standard of practice for the plaintiffs’ bar that deprives the absent class members of the quality representation necessary to fully and vigorously prosecute a case against such an adversary.

CONCLUSION

My modification of the Magistrate’s Order in the instant case is not, in and of itself, a substantial alteration of the awards made by the Magistrate. Its importance relies on the court’s having summarized its experience and in articulating its considered judgment concerning the real mischief that results from the relatively new practice of cutting fees of class action lawyers with the stated purpose of protecting a class. For four years the three law firms representing the class labored for hundreds of hours without compensation to win a settlement for this class of turkey growers. The lawyers agreed among themselves to limit their total fees to 35.5 percent of the recovery — a share which is surely commensurate with the prevailing fees in non-class action suits. As a result of their self-imposed limitation, the lawyers did not seek a multiplier, and in fact, had to discount their lodestar fee. The plaintiffs’ lawyers have demonstrated unswerving dedication to the cause of the class; there was no objection from any class member to the fees; and the Magistrate observed that the work was surely deserving of a multiplier as high as a factor of two. The Fine Paper analysis subjects the fee applications to the sort of scrutiny more appropriate to the cross-examination of an adverse expert in a jury trial. The working assumption of the approach in Fine Paper is that when the lawyers for the class record their time, as they routinely do for every other client, by entering the date and activity without a self-explanatory rationalization of the benefit of the activity to the client, the phone calls, correspondence, meetings, etc., duly reflected must be presumed to be frivolous or wasteful. For the reasons given, the assumption was not warranted here.

The Court, therefore, concludes that:

1. A $460,850.00 fee award to the Robins law firm is fair and reasonable and represents an equitable charge to benefitted class members;
2. A $54,792.00 fee award to the Meyer law firm is fair and reasonable and represents an equitable charge to the benefitted class members; and
3. A $29,358.00 fee award to the Fiedler law firm is fair and reasonable and represents an equitable charge to benefitted class members.

LITIGATION COSTS AND EXPENSES

The Joint Fee Petition also contained a prayer for reimbursement of litigation costs and expenses, and for payment of interest to thirty-one growers who contributed to the original litigation fund. Specifically, the three law firms representing the class requested reimbursement for the following out-of-pocket costs and expenses:

Robins, Zelle, Larson & Kaplan $21,177.22
Meyer, Meyer & Pottratz $ 1,824.70
Letnes, Marshall, Fiedler & Clapp, Ltd. $ 3,121.92
Thirty-one Contributing Class Members (Includes 11% interest per annum) $78,476.54

From a review of the original fee petition, the record, personal experience and involvement with this case and the supplemental affidavits, it is clear to this Court that the expenses and costs advanced by all three law firms were necessary, reasonable and benefitted the class. Furthermore, these three law firms have kept these costs and expenses at a minimum, especially when one considers the length of the litigation. Finally, the $11,239.00 deducted from the out-of-pocket request of the Robins law firm was in error. This amount was not part of the expenses sought by the Robins law firm and does not reflect an overlap of the out-of-pocket expenses sought.

Although the Court has a duty under Rule 23 of the Federal Rules of Civil Procedure to review the reasonableness of the request by class counsel for reimbursement of their costs and expenses, it must not be so overzealous as to deny legitimate claims for the reimbursement of out-of-pocket costs and expenses. To do so, would likewise prevent representative plaintiffs and their class action counsel from being reimbursed for legitimate costs and expenses. This would likely discourage both the filing of and vigorous prosecution of legitimate claims by those who have suffered.

The Court, therefore, concludes that:

1. $1,824.70 is a reasonable sum for reimbursement to the Meyer law firm for out-of-pocket costs and expenses.
2. $3,121.92 is a reasonable sum for reimbursement to the Fiedler law firm for out-of-pocket costs and expenses.
3. $21,177.22 is a reasonable sum for reimbursement to the Robins law firm for out-of-pocket costs and expenses.
4. $78,476.54 is a reasonable sum for reimbursement (includes 11% interest) to those thirty-one class plaintiffs who initially advanced the sums used for out-of-pocket costs and expenses.

ORDER

The Court, therefore, Orders That:

1. The proposed settlement, as set forth in the Settlement Agreement of June 18, 1985, between the parties through their respective counsel, is hereby approved pursuant to Fed.R.Civ.P. 23(e).

2. Defendant is hereby directed to pay out of the total settlement of One Million Five Hundred Fifty Thousand Dollars ($1,550,000.00), pursuant to Paragraph 4 of the Settlement Agreement, attorneys’ fees to counsel for the class as follows:

Meyer, Meyer & Pottratz $54,792.00
Letness, Marshall, Fiedler & Clapp, Ltd. $29,358.00
Robins, Zelle, Larson & Kaplan $460,850.00

3. Defendant is hereby directed to pay out-of-pocket costs and expenses out of the total settlement of One Million Five Hundred Fifty Thousand ($1,550,000) pursuant to Paragraph 4 of the Settlement Agreement as follows:

Meyer, Meyer & Pottratz $ 1,824.70
Letness, Marshall, Fiedler & Clapp, Ltd. $ 3,121.92
Robins, Zelle, Larson & Kaplan (Robins, Zelle, Larson & Kaplan shall apply the balance of plaintiffs’ expense fund, $1,982.12, to the costs they have advanced.) $19,195.10

4. Defendant is hereby directed to pay out of the total settlement of One Million Five Hundred Fifty Thousand Dollars ($1,550,000), pursuant to Paragraph 4 of the Settlement Agreement, the sum of $78,-476.54 to Robins, Zelle, Larson & Kaplan to be disbursed, in turn, as principal and interest to reimburse those class members who contributed initially to pay out-of-pocket costs. Robins, Zelle, Larson & Kaplan shall deposit this payment in its client trust account and shall promptly remit to each of the original contributing growers the principal and interest on their contribution. Upon completion of the disbursement to the class members involved, Robins, Zelle, Larson & Kaplan shall file a certificate with the Court stating that it has complied with this provision of the Order.

5. Defendant shall determine, pursuant to Paragraphs 4, 7 and 8 of the Settlement Agreement, the amount payable to each member of the class shown on the Class List. The payments due to those claimants whose claims are disputed, shall be paid in accordance with Paragraph 8 of the Settlement Agreement.

6. The balance of the settlement proceeds shall be paid pursuant to Paragraphs 4 and 7 of the Settlement Agreement.

7. Payment by defendant pursuant to this Order shall release defendant from any liability to a class member, or a successor or assign of the class member, based on the 1980 Cooperative Marketing Pool Agreement or arising out of the operation of the 1980 Cooperative Marketing Pool.

8. This Court shall retain jurisdiction to resolve any matters that arise pursuant to the terms of this Order.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . In addition to the record that was before the Magistrate, this Court has the benefit of additional affidavits submitted by the three law firms with their appeal papers pursuant to 28 U.S.C. § 636(c)(6), and substantial personal involvement as presiding judge over much of the proceedings.