source: Caselaw Access Project

author: WILLIAM C. CONNER, District Judge:

license: Public Domain

text:
    LITTON SYSTEMS, INC., et al., Plaintiffs, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants.
    No. 76 Civ. 2512 (WCC).
    United States District Court, S.D. New York.
    July 9, 1985.

      Curtis, Mallet-Prevost, Colt & Mosle, New York City, Howrey & Simon, Washington, D.C., for plaintiffs; Peter E. Flemming, Jr., New York City, William Simon, John Bodner, Jr., Francis A. O’Brien, Michael K. Brown, Washington, D.C., Theodore F. Craver, Larry L. Yetter, Litton Industries, Inc., Beverly Hills, Cal., of counsel.
    Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for defendants; Harvey Kurzweil, Raymond Brenner, David J. Ritchie, Peter H. Jacoby, New York City, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

In 1976, plaintiffs Litton Systems, Inc., et al. (“Litton”) brought suit against defendants American Telephone and Telegraph Company, et al. (“AT & T”) for violations of the federal antitrust laws. After years of pretrial proceedings and a five-month jury trial, I entered judgment in favor of Litton in the amount of $276,774,-729. The Court of Appeals for the Second Circuit unanimously affirmed that judgment, Litton Systems, Inc. v. American Telephone and Telegraph Co., 700 F.2d 785 (2d Cir.1983), and the United States Supreme Court denied AT & T’s petition for a writ of certiorari. — U.S. ---, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984).

Litton now moves, pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, for an award of costs and attorney’s fees for its successful defense of the judgment on appeal. It calculates its costs at $288,646.85 and its attorney’s fees at $1,496,564. It requests that I multiply this lodestar amount by a factor of 1.5 to 2.5.

I stress that Litton seeks only costs and fees incurred on appeal. In an Opinion and Order issued after the trial, I sanctioned Litton for its attorneys’ willful failure to make pretrial discovery, and decided that the appropriate punishment for that behavior was denial of all costs and attorney’s fees to which Litton would otherwise have been entitled. Litton Systems, Inc. v. American Telephone and Telegraph Co., 91 F.R.D. 574 (S.D.N.Y.1981), aff'd, 700 F.2d 785 (2d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984). Accordingly, Litton does not seek costs or attorney’s fees for the pretrial or trial phases of the litigation.

AT & T contends that Litton’s motion should be denied in its entirety for the following reasons: (1) it construes my earlier Opinion depriving Litton of its costs and attorney’s fees as applying to all costs and fees incurred in connection with the litigation, including appeals; (2) it urges that even if my earlier Opinion did not extend to costs and attorney’s fees incurred on appeal, I should deny Litton those costs and fees as an additional sanction for its attorneys’ misconduct; (3) it contends that Litton waived its right to apply for costs and attorney’s fees by executing a Satisfaction of Judgment that did not reserve that right; and (4) it argues that Litton’s time records are not sufficiently specific to determine whether the time spent was on issues on which Litton prevailed, or on issues on which Litton did not. AT & T also raises a number of objections to specific portions of Litton's application. I will address each of these contentions in the order presented above.

First, with respect to AT & T's contention that my earlier Opinion depriving Litton of its costs and attorney’s fees operates to bar its present application for costs and fees incurred on appeal, I must say that I did not intend my Opinion to be so read. Indeed, as Litton has pointed out, at the time I issued my Opinion, I was in no position to consider Litton's appellate fees: I did not know what would happen on appeal, what Litton’s appellate fees would be, or whether Litton would be successful and entitled to such fees.

Moreover, I have reviewed my earlier Opinion and find little in it suggesting that the sanction I imposed there would apply to costs and fees incurred on appeal. I have also reviewed the Court of Appeals’ opinion affirming my decision, and despite AT & T’s urging, I see nothing in it to indicate that the court read my decision any differently than I intended. Therefore, I conclude that my earlier Opinion does not bar Litton’s instant application.

I also disagree with AT & T’s second argument, that I should deny Litton’s application for appellate costs and fees as an additional punishment for its counsel’s misconduct. While I do not wish to suggest that the passage of time has made that misconduct any less reprehensible, I am satisfied that Litton’s counsel have been sufficiently punished for their misdeeds. As AT & T itself has pointed out, Litton and its counsel sustained considerable adverse publicity when I issued my decision, and, of course, they suffered a substantial pecuniary loss as well. Moreover, I am not persuaded by AT & T's argument that by permitting Litton to recover its appellate costs and fees I would create “the impression that flagrant, dishonest conduct becomes acceptable if the party adjudged guilty wins an appellate affirmance on its substantive claim.” Def. Mem. in Opp. at 9. I fully trust that the seriousness of the misconduct in this case and the Court’s willingness to punish such misconduct has not been and will not be lost on Litton’s counsel or on the bar generally.

Accordingly, I turn to AT & T’s third contention, that Litton waived its right to seek its appellate costs and attorney’s fees by executing a Satisfaction of Judgment that did not. expressly reserve that right. Litton executed the Satisfaction in question on January 26, 1984, ten days after the Supreme Court denied AT & T’s petition for a writ of certiorari. At the time, Litton’s appeal of my decision denying its motion to amend the judgment to provide for a higher rate of interest was pending before the Court of Appeals. Accordingly, Litton expressly reserved in the Satisfaction its right to any additional interest the Court of Appeals might award, and its right to seek further review in the Supreme Court if necessary. The executed Satisfaction reads in relevant part as follows:

WHEREAS, defendants have paid to plaintiffs the sum of $340,993,305.92 (three hundred forty million, nine hundred ninety-three thousand, three hundred five dollars and ninety-two cents), representing the amount of said Amended Judgment and interest thereon at the rate of 9 (nine) per cent to the date hereof; and
WHEREAS, it is hereby certified that there are no outstanding writs of execution to enforce said Amended Judgment; now,
THEREFORE, satisfaction of said Amended Judgment, except for any additional interest thereon that may be allowed upon a final determination of plaintiffs’ pending appeal (including review, if any, by writ of certiorari in the United States Supreme Court), is hereby acknowledged, and the Clerk of the Court is hereby authorized to make an entry of such satisfaction on the docket of said Amended Judgment, and to cancel and discharge the same to that extent.

Attachment H to Simon Aff. As may be seen, Litton did not reserve in the Satisfaction a right to make this motion for its appellate costs and attorney’s fees.

However, in addition to the Satisfaction of Judgment, Litton executed a “receipt” when the judgment was paid. AT & T drafted a proposed receipt which William Simon, lead counsel for Litton, received on January 25, 1984, the day before he executed the Satisfaction of Judgment on Litton’s behalf. Simon Aff. at U 5. The proposed receipt read in relevant part:

The undersigned acknowledge receipt, on behalf of themselves and the other plaintiffs in the aforementioned action, of the above-described checks payable in the aggregate dollar amount of $340,-993,305.92 in full payment of judgment in the aforementioned action, including all interest and costs, except to the extent of any interest which may be ordered to be paid to plaintiffs as a result of a final determination of plaintiffs’ pending appeal from the district court’s denial of their motion to amend the Judgment, as further specified in the Satisfaction of Judgment.

Attachment D to Simon Aff. (emphasis added).

Upon receiving the proposed receipt, Simon telephoned AT & T’s Assistant General Counsel, Raymond Brenner, and advised him that he could not sign the proposed receipt because Litton intended to make this application for appellate costs and attorney’s fees. Simon Aff. at ¶ 6. Simon apparently read the language of the proposed receipt concerning costs as waiving Litton’s right to make such an application. Therefore, he advised Brenner that he would sign the receipt only if the word “awarded” were inserted before “costs” so that it was clear that Litton was discharging only costs that had already been awarded, and not prejudicing its proposed motion for appellate costs and attorney’s fees. Id. AT & T agreed to Simon’s request and made the change in the wording of the receipt. However, no corresponding change was made in the Satisfaction of Judgment.

AT & T does not deny that Simon advised its counsel before the Satisfaction was executed that Litton intended to make this motion for its appellate costs and attorney’s fees, or that AT & T’s counsel agreed to the change in the wording of the receipt. See Brenner Aff. at ¶ 3. It contends, however, that the receipt was intended only as an internal accounting document and that only the Satisfaction of Judgment represents a full integration of the agreement between the parties. Therefore, it argues that I should not consider Simon’s description of the events surrounding the modification of the wording of the receipt or the modification’s effect on Litton’s right to make this application.

In taking this position, AT & T attempts to capitalize on what was obviously an oversight by Litton’s counsel. While perhaps Litton should have been more careful in reserving in the Satisfaction its right to make this application, the fact remains that AT & T does not deny that Simon expressly advised Brenner before the Satisfaction was executed that Litton intended to make this motion. In addition, AT & T does not deny that the change in the wording of the receipt was intended to memorialize Litton’s right to do so. Thus, there is no real dispute as to the true agreement between the parties, and I see no good reason to conclude that Litton waived its right to apply for its appellate costs and fees by failing to reserve it expressly in the Satisfaction of Judgment.

That brings me to AT & T’s fourth argument in opposition to Litton’s application. AT & T contends that Litton’s application must be denied in its entirety because Litton was not the prevailing party on all of the issue's on appeal, and the documentation submitted by Litton’s counsel does not differentiate between time spent on issues Litton won and time spent on issues it lost. After reviewing the issues raised on appeal, I have concluded that AT & T’s argument is unavailing.

The parties raised three categories of issues in the Court of Appeals. First, AT & T argued that various trial rulings and instructions were erroneous. The Court of Appeals rejected these arguments, and AT & T concedes that Litton was the prevailing party on these issues. Second, AT & T raised the sanction issue, argued that the sanction imposed was not severe enough, and suggested that a more appropriate sanction would have been dismissal of Litton’s case. Litton also appealed the sanction, but of course argued that it was too severe. The Court of Appeals rejected the arguments of both parties, and affirmed the sanction imposed. Because the Court of Appeals did not reduce or vacate the sanction as Litton had requested, AT & T contends that Litton was not the prevailing party on the sanction issue. Finally, Litton conditionally appealed some issues it had lost at trial in the event the Court of Appeals reversed the judgment and a new trial was necessary. However, since the Court of Appeals affirmed the judgment, it had no occasion to review these issues. AT & T contends that since the Court of Appeals found it unnecessary to address these questions, Litton cannot be considered the prevailing party with respect to these issues either.

Litton does not dispute that its attorneys failed to record the hours spent on the appeal in a way that would permit their classification into the categories I have just set out above. This failure was more than a minor oversight in light of the Court of Appeals’ repeated admonitions to attorneys to maintain detailed accounts of the hours they spend on litigation. Litton certainly should have anticipated that it might achieve only mixed results on the appeal, and its attorneys should have taken steps to record carefully how much time was spent on each issue raised.

Nonetheless, in view of the Supreme Court’s recent decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), I conclude that Litton’s failure to identify which hours were spent on issues it clearly won and which hours were spent on issues it did not clearly win is not fatal to this application. In Hensley, the Supreme Court rejected the issue-by-issue analysis that AT & T advocates here in favor of a more straightforward “bottom line” approach. The Court stated:

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit____ Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Id. at 435, 103 S.Ct. at 1940 (citation and footnote omitted; emphasis added).

By this standard, it is clear that Litton is entitled to the fees it reasonably incurred in connection with the issues it raised on its conditional appeal, even though the Court of Appeals never addressed those issues. No one, not even AT & T, can deny that Litton achieved excellent results on the appeal. Moreover, the only apparent reason why the Circuit Court did not address the issues Litton raised on its appeal was that it was persuaded by Litton’s arguments in opposition to AT & T’s direct appeal. Since Litton was fully successful in defending the judgment it had won, it should be fully compensated for the attorney’s fees it incurred in that effort.

The hours Litton spent on the sanction issue admittedly present a more difficult question. Even under Hensley, work on an unsuccessful claim should be excluded from a fee award if that claim is completely unrelated or distinct from the successful claims. Id. There can be no doubt that Litton was unsuccessful in its attempt to persuade the Circuit Court to vacate the sanction I had imposed on it, and that the sanction issue was distinct both as a matter of fact and legal theory from all of the other issues raised on the appeal. Nonetheless, an examination of the manner in which the sanction issue was raised on appeal shows that Litton was, in one sense, the prevailing party on that issue. For that reason, I believe Litton should recover compensation for the hours its attorneys spent litigating that question as well.

AT & T directly appealed the sanction I had imposed on Litton and was the first party to brief the issue to the Circuit Court. As mentioned earlier, AT & T argued that the sanction imposed was not severe enough and asked the Court of Appeals to impose the ultimate sanction of dismissing Litton’s case. Litton cross-appealed and responded to AT & T’s brief by arguing (1) that this Court had correctly declined to dismiss the case, and (2) that a lesser sanction was called for. Litton apparently and properly saw these two arguments as interrelated and presented them in the same section of its brief to the Court of Appeals. As I indicated earlier, the Court of Appeals ruled for Litton on the first argument, but sided with AT & T on the second, and thereby made each party both a prevailing and losing party at the same time.

However, since the arguments presented were so interrelated, I believe the fact that Litton prevailed on one of them justifies an award of the reasonable costs and attorney’s fees incurred in litigating both of them. Since the arguments were so interrelated, I doubt that Litton’s counsel spent many hours preparing and presenting the argument they lost in excess of the time they would have expended if they had prepared and presented only the argument they won. In other words, I believe it would have been practically impossible for Litton’s attorneys to differentiate between the hours they spent on one argument and the hours they spent on the other. For this reason, and for the reasons I have discussed in the paragraphs above, I conclude that Litton is entitled to recover all of the costs and attorney’s fees it reasonably incurred in litigating all of the issues presented on appeal, including the sanction issue and the issues Litton raised on its conditional appeal. Having disposed of these preliminary issues, I finally turn to the specifics of Litton’s application.

A. Attorney’s Fees.

The first step in reviewing any attorney’s fee application is to calculate the lodestar amount. That is done by multiplying the number of hours reasonably spent on the lawsuit by an appropriate rate of compensation. See generally City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir.1974).

In its initial application, Litton claimed that its attorneys and paralegals had spent 16,300.75 hours on the appeal and related matters through January 31, 1984. Out of these thousands of hours, AT & T specifically objected to 119 on the ground that they were spent on issues unrelated to the appeal. See Def.Mem. in Opp. at 20-21, 25 and Appendix thereto. Litton thereafter revised its application to include time spent through April 30, 1984 and at the same time, it reviewed AT & T’s specific objections. Litton voluntarily eliminated 40.75 hours of the challenged items, but it declined to eliminate or adjust the other contested entries. Bodner Aff. at ¶ 16 and Attachment F thereto. I have reviewed the balance of the hours to which AT & T specifically objected, and conclude that they were properly included in Litton’s application. Thus, with the revision and voluntary adjustments, Litton claims that its attorneys and paralegals spent a total of 15,834 hours on the appeal.

In addition to the specific objections noted above, AT & T has objected more generally to other items in the application. First, it argues that Litton may not recover for the “hundreds” of hours spent preparing a bill of costs and this application for attorney’s fees. However, the prevailing rule in cases such as this, where the attorney’s fees sought are not to be paid out of an equitable common fund, is that time spent on preparing and litigating the fee application is compensable. Prandini v. National Tea Co., 585 F.2d 47, 52-53 (3d Cir.1978); Arizona v. Maricopa County Medical Society, 578 F.Supp. 1262, 1276 (D.Ariz.1984); Mid-Hudson Legal Services v. G & U, Inc., 465 F.Supp. 261, 269-70 (S.D.N.Y.1978). As for the fact that Litton’s attorneys spent so many hours working on this application, I can only say that I am not surprised. Having seen some of the correspondence between the parties’ attorneys concerning the fee application, see Attachments G and H to Bodner Aff., I suspect that Litton reasonably believed that its application would be hotly contested and spent considerable time making the necessary preparations. I believe that some of these hours could have been eliminated if AT & T had attempted to cooperate with Litton in resolving their differences, but AT & T apparently declined to do so. It will not be heard to complain now of inefficiencies for which it was in significant part responsible.

AT & T also objects to the many hours Litton’s attorneys spent reviewing and preparing responses to AT & T’s petition for rehearing to the Court of Appeals, to the United States Solicitor General’s amicus curiae brief to the Supreme Court, and to AT & T’s reply to the Solicitor General’s brief. The Supreme Court and the Second Circuit did not request these responses from Litton, and Litton never filed them. For these reasons, AT & T labels the work Litton’s attorneys did “unnecessary,” thereby suggesting that it was a waste of time.

However, contrary to AT & T’s claim, this work was useful and, indeed, prudent. Litton has stated that most of the time spent reviewing these documents and preparing responses to them was later used in responding to an amicus curiae brief filed by Benjamin Hooks in the Court of Appeals and to AT & T’s petition for a writ of certiorari in the Supreme Court. Moreover, Litton’s attorneys would not have properly represented their clients’ interests if they had not spent some time carefully reviewing these all-important documents. Undoubtedly, AT & T’s petition for rehearing and the Solicitor General’s amicus curiae brief in the Supreme Court could have had substantial impact on the litigation. It is also possible, of course, that those courts might have requested a response from Litton on short notice; Litton had to be prepared for any possibility. Accordingly, I am fully satisfied that the hours Litton’s lawyers used to review these documents and prepare responses to them was well spent and properly included in Litton’s application.

Thus, I conclude that Litton is entitled to compensation for all of the 15,834 hours its attorneys and paralegals devoted to the appeal. AT & T has failed to show that the number of hours Litton’s counsel spent on the appeal was unreasonable or otherwise noncompensable. Accordingly, I turn to the next step in computing the fee award, setting an appropriate rate of compensation.

Litton has requested that I apply its actual current billing rate for each attorney and paralegal who worked on this case. Litton defines the actual current billing rate as the rate charged for each attorney and paralegal during the last billing period that person worked on the case.

AT & T does not dispute that Howrey & Simon’s rates for services are reasonable in today’s legal market. However, it argues that if I apply current billing rates to work performed two and one-half years earlier, when the appellate stage of the litigation first began, Litton will receive a windfall in the form of two upward adjustments in its rates. First, the current rate reflects yearly increases in the firm’s general billing rates, and second, it reflects increases in individual billing rates caused by greater seniority. Thus, for example, the work of a lawyer who was a junior associate at Howrey & Simon in 1981 would be compensated not at the 1984 junior associate rate, but at the 1984 rate for a more senior associate. AT & T argues that in order to avoid awarding this windfall, I should limit Litton to recovery at Howrey & Simon’s historic billing rate, that is, the prevailing rate at the time the work was performed.

The Second Circuit considered the question of whether a prevailing party should recover its attorney’s fees at current rates or historic rates in New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir.1983) (“NYSARC”). In discussing the issue, the court stated that “[njeither historic nor current rates are ideal.” Id. at 1152. The court noted that “historic rates do not reflect inflation or the cost of forgone interest, and, therefore, undercompensate prevailing parties.” Id. On the other hand, while current rates incorporate inflation into the fee award, “the incorporation is imprecise and can overcompensate prevailing parties.” Id. The court concluded that historic rates should be used in multi-year cases so as to avoid windfall awards, id. at 1153, but added that where, as in this case, “the services were rendered over two or three years, relevant figures for the current year will normally still be appropriate.” Id.

I have carefully considered the concerns the Court of Appeals expressed in NYSARC, and have concluded that using Howrey & Simon’s current rates is appropriate here. In reaching this conclusion, I am persuaded by the analysis in the uncontroverted affidavit of Ellen Blumstein. Using the United States Department of Labor’s Consumer Price Index, Blumstein calculated the inflation rate for the period October 1981 through June 30, 1984 at 10.8%. Of course, if I applied Howrey & Simon’s historic rates, Litton would be undercompensated by this amount. However, Blumstein has demonstrated that if I applied Howrey & Simon’s current billing rates, Litton’s award would be increased by only 10.4% over the historic rates. Since this is still 0.4% less than the inflation rate for the period, Litton would obviously not receive a windfall; instead, its compensation would be nearly exactly full, which of course is the aim of every fee award. In light of this information, and the Second Circuit’s decision that the use of current rates is normally appropriate, I will apply Howrey & Simon’s current rates in fixing the lodestar amount.

Using the number of hours set out above and the rate of compensation I have just discussed, I calculate Litton’s lodestar amount at $1,496,564. This chart reflects the details of the calculation:

Partners Hours Rates/Hr. Lodestar
William Simon 88.50 220 $ 19,470
John Bodner 1,889.00 180 340,020
Francis A. O’Brien 1,057.50 145 153,338
Ralph Gordon 1,165.50 135 157,275
John W. Nields 884.75 150 57,713
Partners Hours Rates/Hr. Lodestar
Albert O. Cornelison 931.00 125 $ 116,375
Others 113.00 169 19,097
Total 5,628.75 $ 863,288
Associates
Kevin P. McEnery 1.395.25 115 $ 160,454
Lewis M. Barr 1.305.25 105 137,051
Lisa Gok 473.25 75 35,494
Michael K. Brown 287.75 75 21,581
Others 697.25 80 55,780
Total 4,158.75 $ 410,360
Paralegals
Lucy Kinsey 133.00 55 $ 7,315
Susan Koepsell 1.123.75 49 55,064
Janet Wagner 1.271.25 59 62,291
Ellen Blumstein 135.25 45 6,086
Nicholas Demko 1.126.25 33 37,166
Robert Groom 391.75 18 7,052
Daniel Douglas 1.184.75 19 22,510
Greg Wigglesworth 85.25 26 2,217
Others 595.25 39 23,215
Total 6,046.50 $ 222,916
FEE TOTALS 15,834.00 $1,496,564

After fixing the lodestar amount, the only remaining question with respect to the issue of attorney’s fees is whether Litton is entitled to an upward adjustment or bonus. As indicated earlier, Litton requests that I multiply the lodestar by a factor of 1.5 to 2.5. AT & T contends that such a bonus is unwarranted.

Litton argues that a multiplier should be applied here because (1) it did not have the benefit of a prior government judgment or decree against AT & T upon which to build its case; (2) both parties were represented by counsel of high quality; (3) the case was large and complex; (4) the risk involved was great; and (5) the result obtained was unprecedented. AT & T, on the other hand, contends that three of these factors, the quality of counsel, the complexity of the case, and the results obtained, are no longer relevant considerations in light of the Supreme Court’s recent decision in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

In Blum, the lower court had increased an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, on the ground that these three factors had been met. The Supreme Court, after noting that application of § 1988 involved the same “standards currently in use” in fixing awards in antitrust and securities cases, id. 104 S.Ct. at 1546, declined to uphold the “bonus” aspect of the award. First, the Court stated that while the trial court’s conclusion regarding the high quality of counsel was no doubt true, “[t]he ‘quality of representation’ ... generally is reflected in the reasonable hourly rate.” Id. at 1549. Second, the Court noted that “[t]he novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel,” id. at 1548, and accordingly, they also “do not warrant an upward adjustment” of a fee award. Id. Finally, the Court added that because “acknowledgment of the ‘results obtained’ generally will be subsumed within the other factors used to calculate a reasonable fee,” it too “normally should not provide an independent basis for increasing the fee award.” Id. at 1549.

Litton argues that Blum is inapposite here because the Court was construing only Congress’s intent in passing the civil rights attorney’s fees statute. While I agree with Litton that the Court did not purport to overrule standing precedent for the calculation of fee awards in antitrust cases, I cannot agree that the Court’s statements are irrelevant here. As I mentioned, the Court explicitly noted that the application of § 1988 involved the same standards as antitrust cases, and the particular problems the Court identified are equally present here. For instance, while I do not question the high caliber of Howrey & Simon’s work, the quality of that work is reflected in the billing rates Howrey & Simon charges its clients. Similarly, the complexity of the appeal is reflected in the great number of hours I have permitted Litton to recover, as are, to a lesser degree, the results obtained. For these reasons, I do not believe these factors support any further adjustment of the lodestar amount.

The other two factors Litton claims are important here likewise do not support an upward adjustment. It is true that Litton did not have the benefit of a government judgment or decree against AT & T. But as AT & T has pointed out, the benefits such a decree would have provided — such as collateral estoppel, the focusing of issues or the easing of discovery — are trial-level benefits. Since I have barred Litton from recovering costs and attorney’s fees incurred during the pre-trial and trial phases of this litigation, I think it inappropriate to increase its appellate fees for this trial-level factor.

AT & T has also correctly noted that Litton did not, at the appellate phase of the litigation, undertake any substantial risk. Courts have often enhanced fee awards in antitrust cases in order to encourage plaintiffs to bring difficult suits to enforce the antitrust laws. But by the time this case reached the Court of Appeals, Litton needed no encouragement: protecting its $276 million judgment undoubtedly provided Litton with ample incentive.

Accordingly, I decline to award Litton the bonus it seeks. Instead, I grant it its unenhaneed attorney’s fees in the amount of $1,496,564. For the reasons I have discussed above, I think that amount fully compensates Litton for all of the time its attorneys reasonably expended in defending the appeal. Moreover, I am confident that this award, large as it is, is reasonable. I am reassured in that view by the fact that AT & T apparently spent approximately three times that amount in fees and costs on the same appeal. See PL Application for Atty’s Fees, Appendix A.

As previously noted, Litton’s application includes only fees incurred through April 30, 1984. It may submit an application for any fees incurred after that date within twenty days of the date of this Opinion and Order.

B. Costs

In addition to its attorney’s fees, Litton seeks $288,646.85 in costs. AT & T objects to a number of the items claimed, as I will discuss below.

First, AT & T objects to $119,-004.84 Litton seeks for computerized litigation support services, $9,290.50 for word processing, and $20,372.29 for use of Lexis. While some of the authorities Litton has cited from other circuits take a contrary view, the well-established rule in this circuit is that the only costs recoverable by a successful plaintiff in a private antitrust suit are those normally allowable under 28 U.S.C. § 1920 and Rule 54(d), F.R.Civ.P. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 309 n. 75 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); Dai Ming Shih v. Kennedy, 297 F.2d 791, 806-07 (2d Cir.1924). None of these three computer services represents a recoverable cost under the rule or the statute. Berkey Photo, 603 F.2d at 309 n. 75 (cost of computer retrieval service not recoverable); United States v. Bedford Associates, 548 F.Supp. 748, 753 (S.D.N.Y.1982) (Lexis and word processing costs “are out of pocket expenses” and not recoverable).

AT & T also objects to $38,-181.78 Litton seeks for “administrative office expenses” such as long distance telephone costs, messenger services, local courier services, taxis, out-of-town courier services, and other travel expenses. As I ruled in Beech Cinema, Inc. v. Twentieth Century-Fox Film Corp., 480 F.Supp. 1195, 1198 (S.D.N.Y.1979), aff'd, 622 F.2d 1106 (2d Cir.1980), these items are not properly includible in an application for costs under § 1920. Litton also requests $97,419.86 in printing and photocopying costs. As I stated in Beech Cinema, photocopying costs are not recoverable except to the extent that they are furnished to the Court or opposing counsel. Id. Litton may submit within twenty days of the date of this Opinion and Order a revised statement of its printing and photocopying costs, limited as indicated.

Finally, AT & T objects to $3,687.15 Litton seeks for professional services provided and costs incurred by its local counsel, Curtis, Mallet-Prevost, Colt & Mosle. AT & T complains that Litton has not detailed what services were provided. However, contrary to that assertion, the billing records submitted by Curtis, Mallet adequately set forth the services performed. See Billing Records at 306-13. Nonetheless, since some of these fees include disbursements I have held unrecoverable, I will reduce the amount to $2,586.50, the cost of the professional services rendered.

Thus, I award Litton costs in the amount of $2,808.25. Litton may submit an application for any recoverable costs incurred since April 30, 1984, and a revised statement of recoverable printing and photocopying costs, within twenty days of the date of this Opinion and Order.

Conclusion

For the reasons stated above, I grant Litton attorney’s fees in the amount of $1,496,564 and costs in the amount of $2,808.25. As I indicated above, Litton may submit updated applications within twenty days of the date of this Opinion and Order. AT & T will have twenty days from the date of receipt of those applications to submit any objections.

SO ORDERED.

      . Under Perkins v. Standard Oil of California, 399 U.S. 222, 223, 90 S.Ct. 1989, 1990, 26 L.Ed.2d 534 (1970), a successful litigant does not apply directly to the appellate courts to recover costs and attorney’s fees incurred on appeal, but instead applies to the district court.

      . Litton has also excluded the following items from its application: (1) any costs or attorney’s fees generated prior to October 1, 1981, even though Litton says some preliminary work relating to the appeal was performed during that period; (2) $67,000 for certain taxable costs on appeal that AT & T has already paid; (3) any costs or attorney’s fees incurred in connection with Litton’s claim that it was entitled to an increase in postjudgment interest as a result of an amendment to 28 U.S.C. § 1961; (4) any time charges for work performed by Litton’s corporate counsel, Robert H. Lentz, Theodore F. Craver, and Larry L. Yetter; and (5) hours Litton’s attorneys, Howrey & Simon, recorded but did not bill to Litton.

      . In addition to the objections listed, AT & T contends that Litton’s application must be denied in its entirety because Litton did not give AT & T’s attorneys sufficient access to Howrey & Simon's billing records to make a thorough review. AT & T has not substantiated this allegation.
      Litton made its billing records available to AT & T's attorneys at the New York offices of Curtis, Mallet-Prevost, Colt & Mosle from March 26, 1984 through April 20, 1984. Bodner Aff. at ¶ 9. Thus, AT & T’s counsel had twenty business days to review the documents. During that period, Litton also permitted AT & T’s attorneys to borrow the documents from Curtis, Mallet's offices and take them to their own offices for limited periods. Id. at ¶ 11. Under this arrangement, AT & T’s counsel had the documents in their possession for all or part of twelve business days. Id. That clearly provided AT & T with an adequate opportunity to review the records.

      . Litton had moved to amend the judgment for an increase in post-judgment interest as a result of an amendment to 28 U.S.C. § 1961. I ruled that this amendment did not apply to judgments entered prior to the effective date of the new statute. Litton Systems, Inc. v. American Telephone and Telegraph Co., 568 F.Supp. 507 (S.D.N.Y.1983). The Court of Appeals affirmed that decision. 746 F.2d 168 (2d Cir.1984).

      . AT & T has objected to Litton's request that paralegal fees be included in the lodestar amount. However, since in the discussion below I decline to apply a multiplier to the lodestar, it makes no difference whether Litton’s paralegal fees are included as part of the attorney’s fee award or as part of Litton’s recoverable costs.

      . Appendix A consists of quarterly reports AT Si T filed with the Federal Communications Commission showing its total expenses in defending the lawsuit from October 1, 1981 through September 30, 1984, roughly the period the case was on appeal. As Litton concedes, these reports do not permit a direct comparison with amounts Litton seeks in its application because the reports reflect only general categories of expense and do not disclose the specific nature of the work performed by AT Si T’s attorneys. Nonetheless, these reports do operate as rough measure of the reasonableness of Litton’s award.

      . AT & T does not object to $221.75 Litton seeks for transcript reporter fees and filing fees. Accordingly, I have included that amount in the award.


author: SAROKIN, District Judge.

text:
    The PILGRIM MEDICAL GROUP, a New Jersey Corporation, Plaintiff, v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS and Irwin Kimmelman, Attorney General of the State of New Jersey, Defendants.
    Civ. A. No. 84-5178.
    United States District Court, D. New Jersey.
    July 10, 1985.

      Horowitz, Bross, Sinins & Imperial by Keith Bonchi, Newark, N.J., for plaintiff.
    Irwin I. Kimmelman, Atty. Gen. of N.J. by Joan D. Gelber, Deputy Atty. Gen., Newark, N.J., for defendants.
   OPINION

SAROKIN, District Judge.

INTRODUCTION

At issue in this case is a state regulation which prohibits certain abortions in clinics when the same abortions are permitted in hospitals. While recognizing the need to regulate abortions in order to safeguard the health of the patient, the courts must be alert to prevent encroachments upon the constitutional rights of those seeking and entitled to abortions. Requiring that certain abortions be performed only in hospitals increases the costs of the procedure considerably and may thus dissuade or deprive some women otherwise entitled from obtaining such service. Therefore, only if the regulations and restrictions comport with accepted medical practice may they be sustained. While the safety and health of the patient are paramount, and the state has a legitimate interest in their protection, the conditions imposed must be such that they do not thwart the availability of low cost abortions unless mandated by accepted and recognized medical standards. Any distinction between abortions which may be performed in hospitals but not in non-hospital facilities must meet this test. To permit otherwise would result in a violation of the right to abortion now clearly guaranteed by decisions of the United States Supreme Court.

Whatever standards make it appropriate to perform abortions in a hospital setting can be imposed in non-hospital facilities, provided such conditions are consistent with present medical knowledge and practice. No risk should be permitted below that standard, but no arbitrary impediment should be imposed above it. The constitutional right to an abortion and the need to perform such abortion pursuant to safe and accepted practices are goals which can be accomplished in harmony. The discord of the underlying issue regarding the right to abortion issue is not presented here and should not affect either the initiation of a regulation or its interpretation. For the following reasons, enforcement of the regulation here in issue is enjoined.

Plaintiff Pilgrim Medical Group, which operates an abortion clinic located in Montclair, New Jersey, brings this five-count, fifty-four paragraph Complaint challenging a New Jersey state regulation governing the performance of abortions in non-hospital settings. In particular, plaintiff contends that such regulation violates state and federal law by not allowing such abortions at eighteen weeks gestation, or twenty weeks from a patient’s last menstrual period (“LMP”). It seeks injunctive relief against the enforcement of such regulation, and against a pattern of harassment allegedly perpetrated against it by defendant. Before the court is plaintiff’s application for a preliminary injunction, as well as defendant’s motion to dismiss the complaint on abstention grounds.

REGULATORY BACKGROUND

The historical background of the regulation here at issue is presented in defendant’s brief and the appendix thereto and is not disputed by plaintiff. After notice and public comment, on June 23, 1978, the defendant New Jersey State Board of Medical Examiners adopted N.J.A.C. 13:35-7.2, later denominated N.J.A.C. 13:35-4.2. This regulation provided that dilatation and evacuation (“D & E”), abortions could be performed in either hospitals or other licensed health care facilities within sixteen weeks LMP, or fourteen weeks gestation. Beyond these time periods, or utilizing other procedures, abortions were required to be done only in licensed hospitals. This regulation was upheld as against constitutional challenge in the state courts. See Livingston v. New Jersey State Board of Medical Examiners, 168 N.J.Super. 259, 402 A.2d 967 (App.Div.), certif den., 81 N.J. 406, 408 A.2d 800 (1979). However, by notice published April 4, 1983, defendant proposed repeal of N.J.A.C. 13:35-4.2; a new regulation was proposed, and ultimately adopted re-wording the old regulation and eliminating the requirement that abortion procedures be performed on an in-patient basis. See 15 N.J.R. 1255 (8/1/83) (Defendant’s Exh. E.).

On June 15, 1983, the Supreme Court of the United States announced its decisions in City of Akron, v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733; and Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983). In part pertinent to this case, these decisions stand for the proposition that a state may not unreasonably burden a women’s right to seek a second trimester abortion by requiring all such abortions to be performed in a hospital setting, when to do so is not mandated by acceptable medical practice. Akron, 462 U.S. at 433-34, 103 S.Ct. at 2494-95. Hence, the Court invalidated an Akron ordinance and a Missouri statute requiring that all second trimester abortions be performed in a hospital. Akron, 462 U.S. at 434-39, 103 S.Ct. at 2494-97; Ashcroft, 462 U.S. 481-82, 103 S.Ct. 2520-21. It concluded “that ‘present medical knowledge,’ Roe [v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1983) ], convincingly undercuts [the] justification for requiring that all second-trimester abortions be performed in a hospital.” Akron, 462 U.S. at 437, 103 S.Ct. at 2496 (emphasis in original) (footnote omitted). The Court implied that it would be unreasonable, and therefore unconstitutional, to require that second-trimester abortions prior to eighteen weeks of pregnancy be performed in a hospital. Id. at 437, 103 S.Ct. at 2496, citing American College of Obstetricians and Gynecologists, Standards for Obstetric-Gynecological Services 54 (5th ed. 1982).

In the wake of these rulings, the Medical Director of Metropolitan Medical Associates requested the State Board of Medical Examiners to re-examine its rule. A formal petition to that effect was filed on December 5, 1983; citing four studies, it argued that a D & E abortion ought to be allowed to be performed in a non-hospital setting up to at least eighteen weeks LMP. Indeed, it apparently suggested that such abortions could take place up to twenty-three weeks LMP. On December 14, 1983, a committee was appointed to study the matter. Defendants Exh. F. Notice of the proposed modification of the rule was published in the New Jersey Register on February 6, 1984. 16 N.J.R. 262. In the meantime, by memorandum dated January 24, 1984, the Committee appointed by the Board concluded that N.J.A.C. 13:35-4.2 ought to be changed. It wrote:

It is the opinion of the Committee that the New Jersey rule concerning termination of pregnancy should be modified. The modification should bring the rule into agreement with the standards used in the manual from the American College of Obstetrics and Gynecology. That manual states “In a hospital based or in a free standing surgical facility or in an outpatient clinic meeting the criteria for a free standing surgical facility, abortions should be limited generally to 18 weeks from the last menstrual period.”

Defendant’s Exh. G. However, the committee rejected the suggestion that D & E abortions be allowed outside of hospitals beyond eighteen weeks LMP; it thus concluded that the rule ought not allow abortion clinics to perform abortions at eighteen weeks gestation. The defendant Board approved this rule and, on August 6, 1984, published the- proposed rule in the New Jersey Register, inviting “in writing data, views or arguments relevant to the” rule to be submitted before September 5, 1984. 16 N.J.R. 2064 (Aug. 6, 1984). According to defendant, the proposed rule,

... was also circulated to three major newspapers, the two State Medical Societies, University of Medicine and Dentistry of New Jersey, the State Department of Health, the New Jersey Hospital Association, the petitioners, and other individuals who had notified the Board of their interests. Considerable public comment was received, but no comment at all was received from plaintiff.

Defendant’s Brief at 7. In particular, the Board received thirty-two comments on the rule, twenty-six opposed and six in favor. “Those opposed, including the New Jersey Catholic Conference, another Catholic organization, and private individuals, referred uniformly to their sincerely held convictions that terminations of pregnancy are wrong per se, and objected to any measures which would lessen the burden on persons elected [sic] to terminate pregnancies. No reasons of a medical nature affecting the safety of the patient were advanced to support that opposition.” 16 N.J.R. 2823 (Oct. 15, 1984). Two clinics, Planned Parenthood of America and of New Jersey, the Medical Society of New Jersey and the State Department of Health supported the rule. Ibid. See also Defendant’s Exh. H.

The rule amendment was adopted at the September 12, 1984 Board meeting, id., and filed September 29, 1984. It became effective October 15, 1984. 16 N.J.R. 2823. As adopted, the rule reads:

13:35-4.2 Termination of Pregnancy
(a) The termination of pregnancy is a procedure which may be performed only by a physician licensed to practice medicine and surgery in the State of New Jersey.
(b) Beyond the first trimester and within a period of gestation not exceeding 18 weeks from the first day of the last menstrual period or 16 weeks’ gestational size as determined by a physician, termination of pregnancy using the dilatation and evacuation procedure shall be performed either in a licensed hospital or a licensed health care facility, and if any other procedure is used the termination of pregnancy shall be performed in a licensed hospital.
(c) Any licensed health care facility performing procedures for termination of pregnancy after the 14th week from the first day of the last menstrual period or 12 weeks’ gestational size must have a Medical Director and a Credentials Committee. Said Committee shall grant to operating physicians practice privileges relating to complexity of the procedure and commensurate with an assessment of the training, experience and skills of each physician for the health, safety and welfare of the public. A list of the privileges of each physician shall contain the effective date of each privilege conferred, shall be reviewed at least biennially, and shall be preserved in the files of the facility.
(d) Termination of pregnancy by any procedure on patients with a gestation exceeding 18 weeks from the first day of the last menstrual period or 16 weeks’ gestational size as determined by a physician, shall be performed only in a licensed hospital.
(e) These rules are intended to regulate the quality of medical care offered by licensed physicians for the protection of the public, and are not intended to affect rules of the Department of Health establishing institutional requirements.

Plaintiff here challenges N.J.A.C. 13:35-4.-2(b) and (d), arguing that, in the words of renowned abortion expert Dr. David A. Grimes, “... it is within accepted medical practice for a qualified medical doctor to perform an abortion up to 18 weeks gestation in an outpatient abortion clinic.” Aff. of David A. Grimes, M.D. (12/12/84) 113. Doctor Sidney A. Wilchins, who is affiliated with plaintiff, agrees, Aff. of Sidney A. Wilchins, M.D., (12/11/84) Hit 8, 19, and states that he and another doctor practicing at plaintiff’s clinic are qualified to perform abortions at eighteen weeks gestational size, at such clinic. Hence, plaintiff seeks to extend.the period in which such nonhospital abortions are performed by two weeks. Defendant disagrees. Its expert states that, while “sympathetic with the concept of extending the duration of abortion that might be performed in a patient facility,” Aff. of Michael S. Burnhill, M.D. (1/10/85) at 3, he believes that D & E procedures ought not be done “on a routine basis past the 18th week LMP in a non-hospital clinic----” Id. at 2. Dr. Burnhill states that whether or not they should be performed in such setting depends upon the doctor’s skill, as well as the facilities available at the particular clinic involved. Id. at 2-3. He concludes

With the exception of the petitioner Pilgrim Medical Group and possibly one other freestanding facility in the State of New Jersey, I know of no other group that is ready, willing or able to perform advanced terminations on a clinic outpatient setting in the State of New Jersey. I am willing to see a situation in which one or two petitioners acting under appropriate guidelines would be given the authority within the licensing act to perform advanced procedures possibly subject to review at the end of the year to determine whether or not they are sufficiently safe to protect the interests of the population of New Jersey.

Id. at 3. Defendant also argues that plaintiff ought not be permitted to appear in this court without at least attempting to invoke the comprehensive administrative procedures available to it in the state system. It is to that issue which the court now turns.

AVAILABLE ADMINISTRATIVE PROCEDURES

It appears that there are, essentially, two sets of administrative procedures which plaintiff might now invoke, or before have invoked, in order to seek a change in N.J. A.C. 13:35-4.2. The first is the administrative rulemaking which has resulted in the current rule. Such rulemaking is authorized by New Jersey Statute Annotated 52:14B-4(f), which states

An interested person may petition an agency to promulgate, amend or repeal any rule. Each agency shall prescribe the form for the petition and the procedure for the submission, consideration and disposition of the petition. The petition shall state clearly and concisely:
(1) The substance or nature of the rulemaking which is requested;
(2) The reasons for the request and the petitioner’s interest in the request;
(3) References to the authority of the agency to take the requested action. Within 30 days following receipt of any such petition, the agency shall either deny the petition, giving a written statement of its reasons, or shall proceed to act on the petition, which action may include the initiation of a formal rule-making proceeding. Upon the receipt of the petition, the agency shall file a notice stating the name of the petitioner and the nature of the request with the Office of Administrative Law for publication in the New Jersey Register. Notice of formal agency action on such petition shall also be filed with the division for publication in the Register.

See also N.J.A.C. 1:30-3.6. This is the procedure which took place based upon the Metropolitan Medical Associates’ petition and which resulted in the amendment of N.J.A.C. 13:35-4.2 to allow D & E abortions in non-hospital settings up to eighteen weeks LMP, rather than within the sixteen week limitation of the prior regulation. It is a procedure which plaintiff, having earlier foregone participation in the rulemaking process, could invoke now, though it argues that to do so would be futile, since the defendant Board has already considered the arguments which plaintiff would make and has rejected them. Plaintiff’s Reply Brief at 16-17. See Defendant’s Exh. H at 2 (rejecting effort to extend “outer permissible limit” to twenty weeks LMP).

Though not explicitly argued by defendant, a second type of administrative procedure available to plaintiff is suggested by Dr. Burnhill. Admitting that two clinics, including plaintiff, have the facilities to perform D & E abortions after eighteen weeks LMP, Dr. Burnhill states his willingness “to see a situation” in which such clinics are allowed to do such abortions on a trial basis, and seems to imply that the New Jersey state licensing act would accordingly allow exceptions to N.J.A.C. 13:35-4.2 to be made. The court has not, however, been made aware of any provision of law which would create such exception. Indeed, N.J.A.C. 13:35-4.2(e), makes clear that, although N.J.A.C. 13:35-4.2(c) requires a Credentials Committee to grant physicians the privilege to perform abortions beyond fourteen weeks LMP, such Committee has no right to act in contravention of the institutional requirements set forth by the Department of Health. See Defendant’s Exh. H; 16 N.J.R. 2823. The court is not persuaded, nor does defendant argue, that N.J.A.C. 13:35-4.2(e) will allow the Department of Health, or any other licensing authority, to license a physician to perform abortions beyond eighteen weeks LMP in a clinic. The regulation would not permit it to do so and, although exceptions to such rule could easily have been incorporated in the rule, none were.

Finally, lurking in the background of this action is an entirely different problem, implicating distinct administrative remedies. In particular, it appears that an investigation of plaintiff by defendant, revealed that they perform second trimester abortions through twenty-three weeks LMP. See Letter from Charles A. Janousek to Sheldon Bross (1/18/84), App. to Complaint. See also Defendant’s Exh. A. Also discussed in the investigative file of plaintiff are allegations of the failure to make required reports and otherwise to follow state rules; uncleanliness; an unregistered physician doing abortions; failure properly to screen or control personnel; etc. Defendant’s Exh. L. Such violations have not, as of yet, given rise to formal administrative enforcement proceedings pursuant to New Jersey Statute Annotated 45:1-14 et seq. and N.J.A.C. 13:44A-1.1 et seq. Such proceedings are also included within the administrative procedures contemplated by the parties in this case.

DISCUSSION

A. Abstention

Defendant first argues that the court should abstain from exercising its undisputed jurisdiction over this matter, in light of the comprehensive administrative apparatus available to challenge N.J.A.C. 13:35-4.2(a), as well as plaintiff’s failure previously to avail itself of that apparatus. In so arguing, defendant invokes that aspect of abstention doctrine known as Burford abstention, based upon Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). There, the Supreme Court held that the interests of “furthering the harmonious relation between state and federal authority” required abstention where

“[t]he State provides a unified method for the formation of policy and determination of cases by the [administrative agency] and by the state courts. The judicial review of the [agency’s] decision in state courts is expeditious and adequate. Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts. On the other hand, if the state procedure is followed from the agency to the State Supreme Court, ultimate review of the federal question is fully preserved here. Cf. Matthews v. Rodgers, 284 U.S. 521 [52 S.Ct. 217, 76 L.Ed. 447 (1932)]. Under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand.”

319 U.S. at 332-34, 63 S.Ct. at 1107. Hence, Burford abstention is appropriate where “the exercise of federal court jurisdiction would interfere with a state regulatory scheme dealing with matters of significant importance to the state,” Harris v. Pernsley, 755 F.2d 338, 344 (3d Cir.1985), at least where there is “adequate state court review of an administrative order based upon predominantly local factors----” Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 349, 71 S.Ct. 762, 768, 95 L.Ed. 1002 (1951). See generally Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir.), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982); Baltimore Bank for Cooperatives v. Farmers Cheese Cooperative, 583 F.2d 104, 108-09 (3d Cir.1978); Allegheny Airlines, Inc. v. Pennsylvania Public Utilities Commission, 465 F.2d 237, 241-44 (3d Cir.1972) (citing cases), cert. denied, 410 U.S. 943, 93 S.Ct. 1367, 35 L.Ed.2d 609 (1973). On the other hand, the court is reminded that Burford abstention, like other abstention doctrines, is meant to be a narrowly construed exception to the general rule that federal courts have “virtually the unflagging obligation” to exercise the jurisdiction granted them by Congress. Baltimore Bank For Cooperatives, supra, 583 F.2d at 111, quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1975). See also Hawaii Housing Authority v. Midkiff 467 U.S. 229, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 14-15, 103 S.Ct. 927, 936-937, 74 L.Ed.2d 765 (1983).

Here, defendant contends that Burford abstention is appropriate because

The New Jersey Medical Board has full authority to deal with plaintiff’s concerns and the final actions of New Jersey administrative agencies are immediately appealable as of right to the Appellate Division of Superior Court. See New Jersey Rules of Court 2:2-3a. To best accomodate the State interests involved in this case, without impairing the interest of
plaintiff in an expeditious review of its claim, this Court should dismiss the pending action in order to provide the New Jersey Board of Medical Examiners the opportunity to accept a petition from plaintiff and to consider the medical evidence it may submit with regard to possible amendment of the Medical Board rule on termination of pregnancy. Since plaintiffs demands in this complaint are so open-ended and unfocused, and appear to demand total abandonment of Board regulation of what surgical procedures may be performed on patients outside of hospitals, the court’s abstention from exercising jurisdiction in this case and permitting the matter to be considered by the professional agency charged with that responsibility would be especially appropriate.

Defendant’s Brief at 11-12. Defendant also notes the strong state interest in protecting the public health, by licensing, rule-making and other means. Id. at 10.

The court finds these contentions not to justify abstention in the instant case. It is true, as defendant argues, that the State has a strong interest in its regulation of public health. Standing alone, however, such interest does not require abstention. See Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 677 n. 5, 54 L.Ed.2d 618 (1978) (“... there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.”); Ada-Cascade Watch Co., Inc. v. Cascade Resource Recovery, Inc., 720 F.2d 897, 903 (6th Cir.1983); Evans v. City of Chicago, 689 F.2d 1286, 1295 (7th Cir.1982). And, while the issue in question- is one requiring an assessment of “present medical knowledge,” as to which the defendant Board has special competence, the Supreme Court has announced time and again that such issue is not beyond the competence of federal courts. See, e.g., Akron, 462 U.S. at 434-39, 103 S.Ct. at 2495-97. Nor, as in Bur-ford and its progeny, are particularly difficult issues of state law presented. See, e.g., Zablocki, supra, 434 U.S. at 380 n. 5, 98 S.Ct. at 677 n. 5 (no abstention, where “[ujnlike Burford, this case does not involve complex issues of state law ... ”); Heritage Farms, supra, 671 F.2d at 746 (same). Most important, however, the court’s decision in this matter will not disrupt state efforts to establish a coherent policy with respect to the issues presented. Ibid. See also Silverman v. Barry, 727 F.2d 1121, 1124 n. 4 (D.C.Cir.1984); Southern Railway v. State Board of Equalization, 715 F.2d 522, 527 (11th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); Ada-Cascade, supra, 720 F.2d at 903; Evans v. City of Chicago, supra, 689 F.2d at 1295. Rather, the issue presented is one upon which the defendant Board has already had an opportunity to rule, and, having examined essentially the same medical and legal authorities as plaintiff presents here, and confronted the same arguments, promulgated the current rule. Thus, this is not a case in which “an early entry of a federal court into the area might promote needless friction between state and federal jurisdiction.” Allegheny Airlines, supra, 465 F.2d at 242-43 (citing cases).

Rather, this is a case in which the court confronts what is essentially a question of federal civil rights. See Harris v. Pernsley, supra, 755 F.2d at 344. See generally C-Y Development Co. v. City of Redlands, 703 F.2d 375, 381 (9th Cir.1983); Manney v. Cabell, 654 F.2d 1280, 1284 (9th Cir.1980) (“... federal courts are particularly hesitant to abstain in section 1983 cases”), cert. denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982); Canton v. Spokane School District # 81, 498 F.2d 840, 846 (9th Cir.1974), citing Wright v. McMann, 387 F.2d 519, 525 (2d Cir.1967); Devlin v. Sosbe, 465 F.2d 169, 172 (7th Cir.1972) (citing cases); Jones v. Metzger, 456 F.2d 854, 856 (6th Cir.1972), cited in J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482, 488 (9th Cir.) prob. jurisdiction noted, — U.S. ---, 105 S.Ct. 76, 83 L.Ed.2d 25 (1984). Furthermore, it does so not in the context of an ongoing state administrative proceeding of the adjudicative type, such as existed in, for example, Burford. or Southern Railway. See also Allegheny Airlines, supra. Instead, defendant seeks to justify abstention by the court in favor of a rulemaking proceeding, reviewable by the Appellate Division of Superior Court. Such proceeding, which will be duplicative of those which have already taken place and may well delay this matter further, will not apply state law to the circumstances of plaintiff’s case but rather, will result in yet another rule which may be attacked, as this one has been, on its face. Where the current rule is being challenged on facial constitutional grounds rather than being interpreted, where such challenge has once before failed in the state administrative mechanism in favor of which the court is asked to abstain, and where the result is likely to yield continued litigation, later in time and after some delay, the court, in the exercise of its equitable discretion ought not abstain. See generally Burford, supra, 319 U.S. at 332-33, 63 S.Ct. at 1106-07; Emrick v. Bethlehem Steel Corp., 624 F.2d 450, 453-54 (3d Cir.1980) (dismissal on abstention grounds “is an exercise of the district court’s sound equitable discretion”). Defendant’s motion to dismiss is therefore denied.

B. Preliminary Injunction

In considering plaintiff’s application for relief, the court is to be guided by four factors:

(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of such relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting preliminary relief will be in the public interest.

Si Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir.1985), citing Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958-59 (3d Cir.1984); Continental Group v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir.1980). Upon such consideration, the court here finds that certain of the equitable relief sought by plaintiff is warranted.

I. Likelihood of success on the merits

The court finds that plaintiff is likely to succeed in showing that N.J.A.C. 13:35-4.2 is unconstitutional based upon the standards set forth in Akron, Ashcroft, and Simopoulos. Those cases make clear that a regulation inhibiting the right to a second trimester abortion is to be upheld only upon a showing of a reasonable relationship to maternal health, and that such showing is made only where the regulation comports with “accepted medical practice.” Akron, Ashcroft, and Simopoulos. Akron, 462 U.S. at 433-34, 103 S.Ct. at 2494-95. As in the Akron, case, defendant does not here argue that the regulation “imposes only an insignificant burden on women’s access to abortion, but rather defends it as a reasonable health regulation.” 462 U.S. at 435, 103 S.Ct. at 2495. In particular, as in Akron, the difference in cost between hospital-based abortions and non-hospital abortions is, apparently, enormous. According to plaintiff’s Complaint, “While the average cost of an abortion in a hospital is in excess of $1,000, Pilgrim offers a medically safe abortion at a cost of approximately $215.” Verified Complaint 1110. At eighteen weeks gestation, plaintiff offers abortions at a cost of approximately $495, as opposed to the $1,500 it would cost in a hospital. Wilchins Aff., 1120. These cost differentials are even greater than those found compelling in Akron. 462 U.S. at 434-35, 103 S.Ct. at 2495 and n. 20. Hence, there is no question, and defendant appears to concede, that N.J.A.C. 13:35-4.2 inhibits the fundamental right to an abortion enunciated by the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and consistently applied ever since. See Akron, 462 U.S. at 420 n. 1, 103 S.Ct. at 2487 n. 1, citing Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977); Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981).

Of course, as the Court has also made clear time after time, such right is not absolute, and must yield to the State interest in protecting the potentiality of human life at the point of viability, on the one hand, and in safeguarding maternal health, on the other. Roe v. Wade, 410 U.S. at 154, 93 S.Ct. at 727. See generally Akron, 462 U.S. at 428-29, 103 S.Ct. at 2491-92. The latter interest, however, has been held not to be compelling until the end of the first trimester. Akron, 462 U.S. at 423-30, 103 S.Ct. at 2489-92, quoting Roe, 410 U.S. at 163, 93 S.Ct. at 731.

This does not mean that a State never may enact a regulation touching on the woman’s abortion right during the first weeks of pregnancy. Certain regulations that have no significant impact on the woman’s exercise of her right may be permissible where justified by important state health objectives. In Danforth, supra we unanimously upheld two Missouri statutory provisions, applicable to the first trimester; requiring the woman tp provide her informed written consent to the abortion and the physician to keep certain records, even though comparable requirements were not imposed on most other medical procedures. See 428 U.S. at 65-67, 79-81 [96 S.Ct. at 2839-2840, 2845-2846]. The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns. But even these minor regulations on the abortion procedure during the first trimester may not interfere with physician-patient consultation or with the women’s choice between abortion and childbirth. See id., at 81 [96 S.Ct. at 2846].
From approximately the end of the first trimester of pregnancy, the State “may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Roe, 410 U.S. at 163 [93 S.Ct. at 732]. The State’s discretion to regulate on this basis does not, however, permit it to adopt abortion regulations that depart from accepted medical practice. We have rejected a State’s attempt to ban a particular second-trimester abortion procedure, where the ban would have increased the costs and limited the availability of abortions without promoting important health benefits. See Danforth, 428 U.S. at 77-78 [96 S.Ct. at 2844-2845]. If a State requires licensing or undertakes to regulate the performance of abortions during this period, the health standards adopted must be “legitimately related to the objective the State seeks to accomplish.” Doe [v. Bol ton, 410 U.S. 179, 195, 93 S.Ct. 739, 749, 35 L.Ed.2d 201 (1973) ].

Akron, 462 U.S. at 430-31, 103 S.Ct. at 2492-93 (footnotes omitted).

The court finds that they are not so related here. In so finding, the court does not seek to ascertain the point in time at which second trimester abortions can no longer safely be performed in clinics. The evidence of record reveals that D & E abortions are most safely performed prior to sixteen weeks gestation, and that certain complications and dangers follow thereupon. Defendant’s Exh. J; Wilchins Aff., Exhs. C-D. However, the sources cited by the parties make clear that the success or failure of late second trimester abortions in non-hospital settings depend upon a number of factors, particularly the skill of the physician. See Defendant’s Exh. J., at 264 (“Some skilled physicians perform D & E abortions safely up to 24 weeks.”); Wilchins Aff., Exh. C. at 406-07 (listing “prudent approaches for those non-hospital facilities wishing to perform outpatient abortions beyond 12 weeks’ gestation”); Id., Exh. D at 562-63. Most importantly, defendant’s own expert states that, while D & E abortions cannot be done “on a routine basis past the 18th week LMP in a non-hospital clinic,” that under certain circumstances, particular clinics could do advance second trimester non-hospital abortions. Burnhill Aff. at 2-3. He states:

It is indeed true that the most important safeguard with respect to these procedures is dependent on the experience of the physician performing the cases. However, beyond that skill there are a number of additional factors which are necessary. These include:
1. The use of ultrasound to assure adequate evaluation of gestational length.
2. The use of laminaria insertions (either singly or serially) to provide for adequate cervical dilatation.
3. The presence of appropriate equipment to extract larger fetuses.
4. The presence of either an intravenous or heparin lock needle being in place on each case.
5. The rapid ability to transport a patient to the hospital in the event of a complication (with arrangements at the hospital to manage such complications). All of these items can, in fact, be spelled out within the framework of our medical licensing act ...

Ibid.

Thus, there is no question that some abortion clinics can perform late second trimester D & E abortions, although neither defendant’s expert nor the court is assured that plaintiff has doctors sufficiently skilled to do so. By broadly prohibiting all non-hospital D & E abortions past eighteen weeks LMP, N.J.A.C. 13:35-4.2 sweeps too broadly, to the detriment of women’s constitutional rights and contrary to accepted medical practice — indeed, medical practice that is accepted by defendant’s expert himself. Defendant admits that exceptions to N.J.A.C. 13:35-4.2 could be carved out by the enactment of new licensing provisions. By nonetheless adhering to mere estimates of the proper time to prohibit second trimester abortions, the state hinders the right to abortion without bona fide medical reasons. The regulation, accordingly, appears unconstitutional, and the court finds that plaintiff is likely to succeed in proving that it is.

In so finding, the court carefully adheres to recent Supreme Court precedent. It is notable that the Court has endorsed state regulations which allow second trimester abortions in a licensed clinical setting based upon a complex of pertinent factors, Simopoulos, 462 U.S. at 515-16, 103 S.Ct. at 2538-39, while striking down those regulatory schemes which draw a bright line at a particular gestational point. Akron, Ashcroft. See also Birth Control Centers, Inc. v. Reizen, 743 F.2d 352, 366-67 (6th Cir.1984); American Colleges of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 293 (3d Cir.1984); Margaret S. v. Treen, 597 F.Supp. 636, 657 (E.D.La.1984). Clearly, an approach which maximizes the opportunities for women to have non-hospital abortions, without medical danger, are preferred over those which create a highly administrable, though imperfect method of deciding when such abortions are and are not appropriate. The latter infringe the constitutional rights of women to choose or not to choose to terminate pregnancy without medical basis. Since N.J.A.C. 13:35-4.2 is this sort of regulation, it is likely to be held unconstitutional.

2. Irreparable harm and harm to third parties

Plaintiff, here asserts its own financial interests, as well as the constitutional rights of its patients. The former are certainly sufficient to satisfy the standing requirements of Article III of the Constitution, in that plaintiff can “show that [it] personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976) (footnote omitted). See Singleton v. Wulff 428 U.S. 106, 112-13, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976) (doctors have sufficient financial interest for standing to challenge abortion state); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (doctors’ interest in avoiding prosecution sufficient). Such financial interests probably do not, however, rise to the level of irreparable harm, see, e.g., Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir.1975); nor has plaintiff made any showing that they do.

Plaintiff’s assertion of its patients’ constitutional rights, however, fully demonstrates the irreparable harm that will occur absent the intervention of the court. That these rights may be asserted by such patients’ physicians is not, and cannot be, disputed. See Singleton, supra, 428 U.S. at 118, 96 S.Ct. at 2876. The fact that plaintiff herein is an abortion clinic, rather than an individual doctor, does not alter this conclusion. See, e.g., Birth Control Centers, Inc. v. Reizen, supra, 743 F.2d at 358; American College of Obstetricians, supra, 737 F.2d at 290 n. 6 (citing cases); Mahoning Women’s Center v. Hunter, 610 F.2d 456, 458 n. 2 (6th Cir.1979). See also Akron, supra (allowing abortion clinic to bring suit, without comment). More to the point, it cannot be denied that, given the price differential between second trimester abortions offered by plaintiff, and those performed in hospitals, many women, and particularly poor women, will forego such abortions, the exercise of their constitutional rights having been impermissibly chilled by the state regulation. The resulting harm is as irreparable as any that can be imagined: not only does it flow from the deprivation of constitutional rights, but it also creates a situation which is irreversible and not compensable. It renders preliminary injunctive relief appropriate and necessary.

3. Balancing of the equities

The court is aware of defendant’s general interest in having a uniform regulatory scheme in the abortion context, to protect maternal health and insure high medical standards. It also recognizes defendant’s hesitation in allowing late second trimester abortions to be performed by plaintiff in particular, given plaintiff’s less than pristine record of rendering medical services. The court does not, however, find such considerations to outweigh the constitutional principles enunciated herein, or the irreparable harm discussed, supra. Therefore, the court must enjoin the enforcement of N.J.A.C. 13:35-4.2(b) and (d). On the other hand, the considerations of public safety here expressed mandate that the court stay such order for ninety days, in order to allow an appropriate regulation, specifying a procedure and criteria for licensing abortion clinics capable of performing advanced second trimester D & E abortions, to be promulgated.

CONCLUSION

There is probably no more volatile issue in this country today than the right to abortion. The Supreme Court having declared that right to be constitutional, encroachments upon it, both intended and unintended, must be stricken, unless they further and protect the health of the patient and accord with accepted, current medical standards and knowledge. Any regulation or law which has the effect of making abortions unavailable to those who cannot afford them, based upon criteria other than medical knowledge, diminishes the constitutional right to abortion granted to all women. This is such a regulation, and it requires the intervention and exercise of the injunctive powers of this court. An appropriate order will issue.

      . These figures are, on the average, equivalent, since gestation usually begins approximately two weeks after the last menstrual period.

      . The Virginia statutory scheme at issue in Simopoulos was upheld as constitutional. It allowed second trimester abortions to be performed in clinics meeting certain criteria in the areas of organization, management, policies, procedures, staffing, facilities and services. 462 U.S. at 515-16, 103 S.Ct. at 2538-39.

      . The State does not argue, nor does the court find, reason to abstain in order to await a state court determination that might moot or present in a different posture the federal constitutional question before the court, Midkiff, supra; Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to avoid restraining a pending state court enforcement proceeding, Hoffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or for reasons of wise judicial administration where state concurrent jurisdiction over a pending action exists. Moses H. Cone Memorial Hospital, supra. Similarly, neither the fact that a procedure might exist by which plaintiff, or certain of the physicians associated with plaintiff, could be licensed to perform abortions in a non-hospital setting after eighteen weeks LMP, see supra 460 U.S. at 10-11, 103 S.Ct. at 933-35, nor the fact that plaintiff might have the opportunity to assert its constitutional rights in an enforcement action not yet pending, see supra at 11-12, 103 S.Ct. at 934-35, justifies absention where, as here, the jurisdiction of this court has properly been invoked.

      . It may also be the case that in New Jersey, as elsewhere, "few, if any, hospitals perform second-trimester abortions,” Akron, 462 U.S. at 435 n. 21, 103 S.Ct. at 2495 n. 21, making the inability to obtain them in a clinic still more burdensome of women’s constitutional rights.

      . Even if plaintiff could not assert the rights of its patients, the court is required to consider such third party rights in determining whether to grant a preliminary injunction.

      . The Court would, of course, prefer stronger evidence that such rights are in fact chilled than Dr. Wilchins’ statement that “Most of my patients at Pilgrim would be unable to afford an abortion in a hospital ... The patients would either have to deliver the child or seek some type of illegal or unsafe abortion.” Wilchins Aff. ¶ 20. However, the court follows the Supreme Court in finding such chilling an inevitable side effect of the price differentials here cited. Akron, 462 U.S. at 434-35 and n. 20, 103 S.Ct. at 2495 and n. 20. In any event, such price differentials make it highly likely that the irreparable harm alleged is in fact occurring. Prior to the entry of a permanent injunction in this matter, the court expects that plaintiff will introduce evidence that women's opportunities to obtain an abortion are, in fact, curtailed by N.J.A.C. 13:35-4.2. In the interim, the court finds the evidence submitted by defendant to the contrary to be too ambiguous to establish the contrary proposition, or to defeat the common sense conclusion that the regulation at issue chills women's constitutional rights. See Defendant's Exh. K (statement by defendant that late second trimester abortions "are done at United Hospitals of Newark”).