author: NANGLE, Chief Judge.

text:
    Michael COLLINS, Plaintiff, v. CHRYSLER CORPORATION, Defendant.
    No. 84-2418C(1).
    United States District Court, E.D. Missouri, E.D.
    March 5, 1985.

      Michael J. Hoare, Chackes & Hoare, St. Louis, Mo., for plaintiff.
    Charles A. Newman, Thompson & Mitchell, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendant’s motion to dismiss or, in the alternative, for summary judgment. This Court grants defendant’s motion for summary judgment.

Plaintiff’s complaint was brought under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiff was an employee of defendant at its assembly plant in Fenton, Missouri. Following a layoff, plaintiff was contacted by defendant concerning a possible rehiring of laid-off employees. Plaintiff alleges that he was not rehired on account of his handicap, a bad back. Plaintiff’s complaint alleges that defendant is a recipient of federal financial assistance, as required by § 504.

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Butter v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Buller, 706 F.2d at 846. However, under Rule 56(e), a party opposing a motion for summary judgment may not rest upon the allegations of his pleadings but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d, § 2739 (1983).

Defendant bases its motion for summary judgment upon its uncontested affidavits, which establish that although Chrysler participates in certain programs that receive federal financial assistance, plaintiff was not denied employment in such a program. In response to said affidavits, plaintiff stated that “he cannot resist defendant’s motion for summary judgment within the standards set forth in Rule 11 [F.R.Civ.P'. 11], in light of the information provided by defendant, under oath, in their [sic] motion for summary judgment.” Moreover, plaintiff moved this Court to grant him leave to dismiss his complaint without prejudice under Rule 41(a)(2). F.R.Civ.P. 41(a)(2).

In the opinion of this Court, it is clear that defendant is entitled to summary judgment on plaintiff’s complaint. Although the Supreme Court has never expressly defined what is meant by the terms “program or activity” as used in § 504, it has indicated in dicta that said language “limits the ban on discrimination to the specific program that receives federal funds.” Consolidated Rail Corporation v. Darrone, _ U.S. _, 104 S.Ct. 1248, 1255, 79 L.Ed.2d 568 (1984). In the case at bar, it is an undisputed fact that the “program” of defendant in which plaintiff was seeking employment, did not receive federal funds. Accordingly, there is no evidence in. this case which would sustain a verdict for plaintiff under any circumstances.

With respect to plaintiffs motion to dismiss without prejudice, it is denied. This Court knows of no reason, legal or equitable, why plaintiffs motion should be granted. Plaintiffs action is clearly without merit and borders on the frivolous. Moreover, defendant has expended substantial time, effort and money to defend this suit to date. In these circumstances, defendant is entitled to the benefit of a judgment on the merits that will preclude further litigation of this matter.


source: Caselaw Access Project

author: LEIGHTON, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Alejandrina TORRES, et al., Defendants.
    No. 83 CR 494, 1-4.
    United States District Court, N.D. Illinois, E.D.
    March 8, 1985.

      Michael E. Deutsch, Dennis Cunningham, Melinda Power, David C. Thomas, Chicago, 111., for defendants.
    Joseph H. Hartzler, U.S. Atty., Chicago, 111., for plaintiff.
   MEMORANDUM

LEIGHTON, District Judge.

In this criminal case, two national electronics news media corporations, National Broadcasting Company, Inc. (“NBC”), and American Broadcasting Companies, Inc. (“ABC”), move the court for leave to intervene. Their interest in this prosecution is the prospect that at trial before a jury the evidence against defendants will include tapes of intercepted aural and visual communications, which, according to the government, show that before their arrest, defendants were engaged in a seditious conspiracy against the United States, one of the charges in this eight-count superseding indictment.

The corporations, as electronics news media institutions, want these tapes made available to them in one of two ways. First, and this is what they prefer, they want this court to enter orders which would allow them to cooperate, install wires in the courtroom, capture the contents of the tapes simultaneously with their introduction as evidence to the jury. The corporations argue that because of the nature of the charges in this case, alleged acts of domestic terrorism, the public has an interest in knowing the contents of the tapes as the evidence is presented to the jury. In the alternative, if their first request is not granted, the corporations ask that this court enter an order that would make the contents of the tapes available to them, during or after recesses, at convenient times during the trial.

The government has no objection to these news media requests. Defendants, however, object on the ground that the broadcasting corporations will give a distorted and unfair construction to the intercepted evidence against them; that the media coverage which the broadcasting corporations intend to give to this case will be biased, they already having branded defendants terrorists despite their pleas of not guilty to the government’s charges; and that making the audiotapes and videotapes available to the corporations will serve only “to gratify private spite or promote public scandal.” For these reasons, defendants insist, the applications by the corporations should be denied because granting them would only give the news media an opportunity to publicize the contents of the tapes and serve the improper purpose of using defendants’ trial as an official source for propaganda.

Based on the following facts and applicable law, and having resolved the issues presented, this court grants the motions for leave to intervene, denies the motions for orders granting the broadcasting corporations permission to install wires in the courtroom and instantaneously capture and broadcast the audio and videotapes; but, in the alternative, grants the corporations’ motions for an order which, at their expense, will permit them to copy all the audio and videotapes admitted in evidence, promptly after such tapes are presented to the jury at the trial of this cause, but in no event later than the conclusion of the half-day court session at which the tapes are played to the jury.

I

On June 29, 1983, Alejandrina Torres, Edwin Cortes, Alberto Rodriguez, and Jose Rodriguez were arrested in Chicago by agents of the government on a charge that they were members of a seditious conspiracy against the United States by which the conspirators sought “to achieve their goals and thereby oppose ... the authority of the government of the United States by means of force, terror and violence, including the construction and planting of explosives and incendiary devices at banks, stores, office buildings and government buildings ...” in the metropolitan area of the City of Chicago. Defendants were arraigned; and bail was set at $5,000,000 cash for Alejandrina Torres and $10,000,000 cash for each of the other defendants.

At a conference which the parties were required to hold under a local rule of this court, and at pretrial proceedings that followed, the government disclosed to defendants that at various dates between January 18, 1983 and shortly before the arrests, the United States Attorney for this district, acting by one of his assistants, applied to the Chief Judge of this court for orders pursuant to Section 2518 of Title 18, United States Code, authorizing FBI agents to intercept wire and oral communications in two locations, Apartment 505, 736 W. Buena Street and Apartment 211, 1135 Lunt Avenue, Chicago, Illinois. It appears that agents had reasons to believe Alejandrina Torres and Edwin Cortes were renters of the apartments and the subscribers to the telephone in the Buena Street location.

The orders that issued, included authority for the agents to install devices which enabled them “to surreptitiously enter the [apartment in question] ... and at night if necessary ... for the purpose of installing, concealing, adjusting and ... removing aural interception and visual observation devices ... that will visually monitor and record the activity taking place in furtherance of the [alleged conspiracy].” In all, in addition to interceptions of wire and oral communications, the government as a result of the visual surveillance, obtained approximately 130 hours of videotapes contained in 52 separate reels which, according to government agents, recorded the activities of defendants, or some of them, within the privacy of the two apartments. In at least one scene captured by one of the cameras, Alejandrina Torres and Edwin Cortes, according to the government, are seen engaged in the act of assembling a bomb.

But on motion of one of the defendants, construed as having been joined in by all of them, this court, after hearing the parties, suppressed the videotapes on three grounds. First, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 to 2520, on which the government relied, did not authorize surreptitious entry of an apartment by agents of the government for the purpose of installing cameras and engaging in the interception of visual, as distinguished from aural communications. Second, even if the statute had so authorized, the United States Attorney had not complied with certain procedural requirements of Title III. Third, no warrant, as that term is known in Fourth Amendment law, had been obtained by the United States Attorney. See United States v. Torres, 583 F.Supp. 86 (N.D.Ill.1984).

The government appealed; and on December 19, 1984, the court of appeals reversed the suppression order. United States v. Torres, 751 F.2d 875 (7th Cir.1984). Now, in anticipation of trial of this case on the merits, and on the assumption that only unsuppressed videotapes are involved, the court issues this Memorandum in order to furnish all interested parties with the reasons for its grant of the motions of NBC and ABC for leave to intervene, denial of their motions for orders allowing them to install wires in the courtroom and capture the contents of the tapes simultaneous with their introduction in evidence; and, the reasons for the court’s grant of the alternative request of the two broadcasting corporations.

II

A

Defendants’ only argument against grant of the motions for leave to intervene is in a footnote to their opposition memorandum in which they say that “[cjounsel has found no cases [sic] which specifically discuss the right of intervention in a criminal matter.” This lack of authority for intervention in a criminal prosecution is understandable. “Intervention — a procedure by which an outsider with an interest in a lawsuit may come in as a party though he has not been named as a party by the existing litigants — is a comparatively recent innovation in Anglo-American legal procedure.” 7A Wright & Miller, Federal Practice & Procedure § 1901. It is a proceeding whereby a person is permitted to become a party in an action between other persons, after which litigation proceeds with both original and intervening parties. Richins v. Mayfield, 514 P.2d 854, 85 N.M. 578 (1973). In a criminal case, it is rare that one person ever has enough interest in the outcome of a prosecution of another. For this practical reason, there is no rule governing intervention in a criminal proceeding. Intervention is common in civil actions; and in the federal courts, it is governed by Rule 24 Fed.R.Civ.P.

However, a cursory review of cases involving news media interest in criminal prosecutions (usually involving evidence to be captured or copied) shows that courts, without discussion, have permitted applications to be made for certain relief, or have granted news media organizations leave to intervene. In such cases, news media entities or organizations have been named and treated as applicants or as intervenors. See United States v. Edwards, 672 F.2d 1289 (7th Cir.1982); United States v. Criden, 648 F.2d 814 (3d Cir.1981); United States v. Dorfman, 550 F.Supp. 877 (N.D.Ill.1982); Application of CBS, Inc., 540 F.Supp. 769 (N.D.Ill.1982). It is of no significance that these cases do not discuss the right of news media companies or corporations to intervene in a criminal case; what is important is that they are permitted to enter, and thus become subject to the jurisdiction of the court, a fact that may inure to the protection of defendants and the public. These are the reasons for this court’s grant of the motions for leave to intervene by NBC and ABC.

B

This brings us to the question whether orders should be entered which would allow NBC and ABC to cooperate, install at least three sets of wires in the courtroom, connected to electronics equipment nearby, and simultaneous with their introduction in evidence by the government, capture the contents of audiotapes and videotapes for broadcast by their television stations located throughout the United States. The two corporations argue that this case is newsworthy; they state that the allegations of the indictment (charges of domestic terrorism) make it essential that they, as new media institutions, be allowed to exercise their First Amendment right to access to a courtroom and discharge of their duty to inform the public of this evidence as it is presented to the jury. Although they do not say this, a careful examination of the authorities cited show that this is a request of first impression in a federal court.

Defendants object to this court granting any of the news media requests. They argue that from their arrest until now, they have denied all of the charges made against them; they have insisted that they are not terrorists nor are they conspiratorial criminals. They say that they are Puerto Rican patriots who are fighting for the independence of Puerto Rico, a country defendants say should be an independent nation free of domination and control by the United States. Defendants remind the court that in a voluminous memorandum supporting their motion to dismiss the indictment against them, they recited the history of Puerto Rico when it was a colony of the Spanish Empire, and since their cession to the United States by Spain in 1897. Defendants complain that neither NBC, ABC, nor any entity of the news media, has given them a fair and unbiased treatment in stating to the public their views that they are prisoners of war in this case, and not criminals. They assert that since their arrest, “the media has [sic] unhesitantly labeled them as terrorists, [and] this highly prejudicial publicity has served to create in the public mind the image of these four Puerto Rican patriots as dehumanized, bomb-throwing maniacs.”

NBC and ABC respond to this argument by saying that defendants’ views are ideological rhetoric. The corporations argue that the burden is on defendants to show why the access being sought to the audiotape and videotape evidence should be denied; and quoting selected language from United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir.1982), they insist that defendants have not carried the burden of proof the law places on them; and for this reason, all of their requests, including installing wires in the courtroom for simultaneous and instantaneous capture of the audiotape and videotape evidence, should be granted.

This court does not agree. In its judgment, poorly as defendants express themselves, they have presented many “articulable facts" which show that the primary request of the two corporations, if granted, would endanger defendants’ rights to a fair trial in this prosecution. They have said enough to remind the court that this case will be difficult enough to preside over when it comes to trial. The accusations against defendants are charged with political emotions. Although this court is convinced that defendants mistakenly interpret the history of the relation between the United States and Puerto Rico, it is also convinced that defendants are sincere in the views they hold concerning the way the islands have been treated by the government of the United States, particularly the military, and in the complaints they make about the way the natural resources of those islands have been exploited by multi-national American corporations. To begin this trial from the posture of allowing two of the country’s leading broadcast corporations instantaneous access to dramatic evidence that casts invidious reflections on defendants is to start this trial on a wrong footing.

The trial of a criminal case implicates the nuances of all constitutional and social values that make us a civilized nation. During its process, the trial judge must keep in mind that his principal purpose is assuring fairness to both sides: the government, on the one hand, the defendant or defendants on the other. United States v. Kerley, 753 F.2d 617 (7th Cir.1984); see United States v. Portis, 542 F.2d 414 (7th Cir.1976); cf. United States v. Chaussee, 536 F.2d 637 (7th Cir.1976). He must see to it that the trial is so conducted that the jurors, as triers of fact, are not distracted from their tasks; he must see to it that nothing occurs to impede the lawyers in their advocacy of the cause they represent; he must see that witnesses are accorded a full and complete opportunity to give their evidence; he must take steps to afford members of the press all avenues by which they can be present and hear so they can accurately report the proceedings; and finally, the trial judge must give those who come to the public’s courtroom full opportunity to see and hear the judicial process as it unfolds during the trial, all of this in an orderly and dignified manner.

A criminal trial is not designed as a forum in which entities of the news media can flex their First Amendment muscles. Nor is it a device attuned to the task of educating absent members of the public to what occurs in a particular criminal case, selected by broadcasting corporations for attention in accordance with their standard of what is newsworthy. As Justice Clark said for the court in Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543 (1965):

[T]he “primary concern of all must be the proper administration of justice”; that “the life and liberty of any individual in this land should not be put in jeopardy because of the actions of any news media”; and that “the due process requirements in both the Fifth and Fourteenth Amendments and the provisions of the Sixth Amendment require a procedure that will assure a fair trial ...

In Chandler v. Florida, 449 U.S. 560, 574, 101 S.Ct. 802, 809, 66 L.Ed.2d 740 (1981), Chief Justice Burger recognized the point this court has in mind when he said:

Any criminal case that generates a great deal of publicity presents some risks that the publicity may compromise the right of the defendant to a fair trial. Trial courts must be especially vigilant to guard against any impairment of the defendant’s right to a verdict based solely upon the evidence and the relevant law. 449 U.S. at 574, 101 S.Ct. at 809.

There is an additional reason that mandates denial of the primary request of these two corporations. On September 19-20, 1984, the Judicial Conference of the United States met in Washington, D.C. This conference is the statutory, representative body of federal judges, chaired by the Chief Justice of the United States; it is responsible for submitting “suggestions and recommendations to the various courts [of the United States] to promote uniformity of management procedures and the expeditious conduct of court business.” 28 U.S.C. Section 331. On its agenda was a report of the Ad Hoc Committee on Cameras in the Courtroom, which had considered a petition filed by twenty-eight separate radio, TV, newspaper and related organizations requesting that Canon 3 A(7) of the Code of Conduct for United States Judges, and Rule 53 of the Federal Rules of Criminal Procedure, be amended to allow radio broadcasting, televising, motion picture and still camera coverage of federal court proceedings. The committee, after careful consideration, unanimously recommended that the petition be denied. The report of the conference shows that the recommendation was approved without a recorded dissenting voice by any judge present. See Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2d Cir.1984).

Canon 3 A(7), which was sought to be amended, provides, in its relevant part, that:

A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions ____

Rule 58 prohibits what this Canon requires a judge to bar from the courtroom and its immediate areas. In mandatory language, it states that:

The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the eourt room shall not be permitted by the court. Fed.R. Crim.P., Rule 53, 18 U.S.C.A.

This court, to the extent that it understands the technology involved, can perceive little difference between the wires NBC and ABC want to install in the courtroom, and cameras; both accomplish “broadcasting, televising, recording, or taking photographs in the courtroom ...” prohibited by Canon 3 A(7) and Rule 53. This court will venture the guess that if the primary request of these two corporations is granted, NBC and ABC will, in the future, cite this case to another federal judge as precedent for the proposition that they should be allowed to install cameras in a courtroom, instead of wires. In this court’s judgment, the primary request being made to this court by NBC and ABC, if granted, would violate the spirit if not the letter of an important canon and rule that govern the conduct of federal judges, and would contravene the policy declared by the Judicial Conference of the United States when it approved the report of the Ad Hoc Committee on Cameras in the Courtroom.

Moreover, in this district there is an even more categorical prohibition of what the two corporations seek by their primary request. Rule 1.52, General Rules of the United States District Court for the Northern District of Illinois, states:

The taking of photographs, radio and television broadcasting or taping in the court environs during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate, whether or not court is actually in session, is prohibited.

This rule, limited to the courtroom and its environs, is constitutional. See United States v. Yonkers Bd. of Educ., 587 F.Supp. 51, 53-54 (S.D.N.Y.1984); even though it restricts certain activities otherwise protected by the First Amendment. Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir.1970). Rules like this one do nothing more than assure “the maintenance of an orderly, dignified environment, free from ancillary distractions, for the solemn conduct of judicial proceedings.” United States v. Cicilline, 571 F.Supp. 359, 363 (D.R.I.1983); Annot. 14 A.L.R.4th § 6[a] at 121, 134 (1979).

C

The alternative request that NBC and ABC make to this court is more in accord with the decided cases, and thus entitled to a different consideration. What they ask is not permission to intrude into the trial process and install wires in the courtroom with the potential for disruption of the trial; they seek merely access to the audiotapes and videotapes, at convenient recesses of the court, after they have been admitted in evidence. In sum, NBC and ABC are asserting the common law right of access to judicial records, a right that is of non-constitutional origin. United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir.1982); cf. In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir.1984).

There is a strong presumption in support of the common law right to inspect and copy records, United States v. Peters (Appeal of Hearst Corporation), 754 F.2d 753, 763 (7th Cir.1985); and permission to inspect, copy, and disseminate the contents of judicial records should be denied only where actual, as opposed to hypothetical, factors demonstrate that justice so requires. United States v. Edwards, supra, 672 F.2d at 1294; cf. United States v. Criden, 648 F.2d 814, 823 (3d Cir.1981); see, e.g., Application of CBS, Inc., 540 F.Supp. 769, 771 (N.D.Ill.1982).

Of course, in a proper case, after balancing the rights of news media entities with the rights of defendants to a fair trial, access to court proceedings as well as the opportunity to copy documents which are parts of judicial records, can be prohibited, in the exercise of a court’s sound discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 603, 98 S.Ct. 1306, 1315, 55 L.Ed.2d 570 (1978); see Application of CBS, Inc., supra at 771. While this is so, the burden is on the party seeking to interfere with this common law right to demonstrate that justice requires the denial of access. Application of CBS, Inc., supra at 771. It has been emphasized that access of the kind sought here by NBC and ABC “may be denied only if ... ‘justice so requires ... ’.” In Re Nat. Broadcasting Co., Inc., 653 F.2d 609, 613 (D.C.Cir.1981). As this court sees it, defendants, as the only parties who seek to interfere with this common law right, have not demonstrated that justice requires denying NBC and ABC access to the audiotapes and videotapes during convenient recesses of the trial. Cf. Newman v. Graddick, 696 F.2d 796 (11th Cir.1983); see United States v. Miller, 579 F.Supp. 862 (S.D.Fla.1984). For these reasons, an order, containing provisions for the protection of all the parties, will be entered granting the alternative request.

For example, among others, one of the provisions will be that after the tapes are admitted in evidence, they will be delivered to the Courtroom Deputy who will promptly enter a minute order showing admittance, thus making the tapes a part of the judicial records of this trial. Thereupon, the tapes are to be delivered to the Court Administrator, Mr. H. Stuart Cunningham, who will be responsible for making the tapes available to NBC and ABC, at their costs. This provision is intended by this court to minimize direct contact between lawyers in the case and representatives of news media entities during the trial and thus “provide a ‘unified and singular source for the media concerning these proceedings’.” See KPNX Broadcasting Co. v. Arizona Superior Court, 459 U.S. 1302, 103 S.Ct. 584, 74 L.Ed.2d 498 (1982), per Justice Rehnquist, as Circuit Justice.

So ordered.


author: ORRICK, District Judge.

text:
    SYUFY ENTERPRISES, Plaintiff, v. AMERICAN MULTICINEMA, INC., AMC Film Management, Inc., and Durwood, Inc., Defendants.
    No. C-79-3052 WHO.
    United States District Court, N.D. California.
    Dec. 7, 1983.

      Michael N. Khourie, Joel Linzler, Mark J. Le Hocky, Khourie & Crew, San Francisco, Cal., for plaintiff.
    Robert C. Hackett, Mohr, Hackett, Pederson, Blakley & Randolph, P.C., Phoenix, Ariz., for AMC Film.
    Benjamin H. Parkinson, Ackerman, Johnston, Campbell &' Parkinson, San Francisco, Cal., Alan K. Benjamin, Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, Mo., for defendants.
   MEMORANDUM OPINION AND ORDER

ORRICK, District Judge.

This is an action for damages and injunctive relief under federal and state antitrust laws and state tort law brought by plaintiff/counterdefendant, Syufy Enterprises (“Syufy”), against defendants/counterplaintiffs American Multicinema, Inc. and its related entities (“AMC”) in which each charged the other with monopolizing, attempting to monopolize, and conspiring to restrain, trade in the exhibition of first-run films in San Jose, California. Following a five-week trial, a jury returned verdicts for defendants and against plaintiff on the allegations of the complaint, and for defendants and against plaintiff in the amount of $1,006,410 (before trebling) on the allegations of the counterclaim. The Court entered judgment on these verdicts on February 11, 1982, and denied plaintiff’s motion for judgment non obstante veredicto in a written opinion filed on July 28, 1982, 555 F.Supp. 418. Defendants’ counsel, Benjamin H. Parkinson, Robert C. Hackett, and Alan K. Benjamin, and their respective firms, now come before the Court seeking $652,369.75 in attorneys’ fees. For the reasons set forth below, the Court finds that defense counsel are entitled to a reasonable fee award of $425,-103.40 for their services in this lawsuit.

I

Section 4 of the Clayton Act, 15 U.S.C. § 15, permits the successful plaintiff in a private antitrust action to recover reasonable attorney’s fees as part of his costs of suit:

“[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

The purpose of the attorney’s fee provision is to insulate treble damage recovery from expenditures for legal fees, consonant with Section 4’s general purpose of encouraging private individuals to undertake enforcement of the antitrust laws. Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1312 (9th Cir.1982); Perkins v. Standard Oil Co., 474 F.2d 549, 553 (9th Cir.1973). A reasonable award of attorney’s fees is a mandatory part of the successful Section 4 claimant’s recovery. Twin City Sportservice, supra.

The Ninth Circuit has sanctioned the use of a “blend” of two overlapping analyses — the Lindy approach and the Kerr approach — to determine “reasonable” fees under the Clayton Act. Moore v. James H. Mathews & Co., 682 F.2d 830, 840-41 (9th Cir.1982). See also In re Capital Underwriters Securities Litigation, 519 F.Supp. 92 (N.D.Cal.1981). Under this blend of analyses, the Court first must determine for each of defendants’ attorneys a “lodestar” figure, based on the number of hours legitimately expended and adequately documented by counsel in preparation for the suit, multiplied by a reasonable hourly billing rate. See Lindy Brothers Builders of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-69 (3d Cir.1973) following remand 540 F.2d 102, 112-18 (1976). Next, the Court must consider enhancing or decreasing the lodestar figure in light of the particular case. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975).

The instant case presents unusual circumstances complicating the calculation of reasonable fees under these analyses: defendants concurrently recovered treble damages for antitrust violations on their counterclaim and successfully refuted the allegations of plaintiff’s complaint. While it is clear that an award of attorney’s fees will lie in favor of a defendant who successfully prosecutes a counterclaim sounding in antitrust, North American Soccer League v. National Football League, 505 F.Supp. 659, 691 (S.D.N.Y.1980) (hereinafter cited as “NASL”) citing Locklin v. Day-Glo Color Corp., 429 F.2d 873 (7th Cir.1970), it is equally clear that the prevailing defendant in a private antitrust suit ordinarily is not entitled to attorney’s fees for successfully resisting the plaintiff’s claims. Byram Concretanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649, 651 (3d Cir.1967); NASL, supra; Juneau Square Corp. v. First Western National Bank of Milwaukee, 435 F.Supp. 1307, 1327 (E.D.Wis.1977). Accordingly, the threshold question here is what proportion of the total fees incurred by defendants is attributable at least in part to the prosecution of the counterclaim, and what proportion is attributable solely to the defense of the claim.

Defense counsel estimate that they spent 5494.86 hours prosecuting the counterclaim and 2328.25 hours defending the complaint. Although they did maintain contemporaneous time records during the course of this litigation, defense counsel did not record separately time spent on the counterclaim and time spent on the complaint. In the absence of separate time records, they derived the above estimates by dividing the services they performed during the litigation into five to eight categories; allocating time expenditures among these categories on the basis of their memories, the type of work specified on the time record, and the stage of the litigation; and further allocating time within these categories between the claim and counterclaim.

Plaintiff does not contest the total number of hours defense counsel claim was expended by them during the course of the litigation. Plaintiff does, however, vigorously contest the method used by defendants to allocate hours between the claim and counterclaim, and the estimates derived therefrom. Plaintiff argues that defense counsel overestimate the proportion of hours spent on the counterclaim to hours spent on the claim, and that their estimates are entirely too speculative and lacking in proper factual foundation to support the award requested. Plaintiff further argues quite correctly that there is no excuse for such speculation, because defense counsel are experienced antitrust lawyers who should have been aware of the need to record separately time spent on the counterclaim.

Faced with this unhappy situation, defendants propose two alternative theories on which they claim they are entitled to all of the fees requested, including those incurred in defense of plaintiffs complaint: (1) defendants were obliged to overcome (i.e., successfully defend) Syufy’s claims in order to prevail on the counterclaim; and (2) Syufy’s complaint constituted “vexatious litigation” in defense of which the prevailing defendants are entitled to attorneys’ fees. The Court considers each of these contentions in turn.

A

Defendants submit that much of the evidence adduced at trial by both parties focused on the losses sustained at AMC’s Oakridge and Saratoga theatres. AMC argued at trial that the losses arose from Syufy’s anticompetitive behavior in the San Jose film exhibition market. Syufy in turn argued that the losses were a product of AMC’s predatory or “kamikaze” bidding in the market, financed by a “national treasury,” by which AMC pushed the price of leasing first-run films far beyond the means of its competitors. Based on these arguments at trial, defendants contend herein that AMC’s counterclaim was the “flipside" of Syufy’s complaint, which AMC was obliged to defeat in order to recover treble damages.

The Court finds little merit in this contention. Evidence concerning losses at AMC’s Saratoga and Oakridge theatres constituted but a portion of the evidence adduced at trial, albeit a significant portion. Considerably more evidence was presented concerning theatres in entirely different geographic and/or product markets. Furthermore, the evidence adduced at trial only partially reflects the amount of discovery and pretrial work completed to prepare the claim and the counterclaim for trial; the greater portion of defendants’ fee request goes to such pretrial preparation. Further still, defendants concede that some fees were incurred solely in defense of the complaint, belying any notion that the complaint was merely the “flipside” of the counterclaim. In short, defendants argument proves no more than that there was some degree of overlap between the claim and counterclaim, a proposition readily admitted by Syufy herein. Defendants fail, however, to demonstrate to the satisfaction of the Court that the claim and counterclaim overlapped entirely, or to such an extent that defendants could not have prevailed on the counterclaim without successfully defending the allegations of the complaint.

Defendants also argue that, in order to prevail on their counterclaim, they were forced to overcome repeated inflamatory allegations of illegal conduct on their part asserted during Syufy’s case-in-chief, which allegations cast them in a bad light before the jury. They submit that defense counsel reasonably undertook to resist these allegations {i.e., defend the complaint) in order to promote their interest in recovering damages on the counterclaim. They rely on Twin Cities Sport-Service, supra, 676 F.2d at 1313, wherein the Ninth Circuit held that successful plaintiffs in a private antitrust action under some circumstances may recover attorney’s fees for prosecuting claims on which they did not prevail:

“[W]e believe that a prevailing antitrust plaintiff is entitled to recover a reasonable attorney’s fee for every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client’s interest in the pursuit of a successful recovery of antitrust damages.”

See also Moore v. James H. Mathews & Co., supra, 682 F.2d at 839.

Defendants’ argument proves too much, for it would apply in any private antitrust action wherein the plaintiff (defendants herein) is sued on a counterclaim (complaint herein), regardless of the nature of the counterclaim or its relationship to the antitrust allegations in the complaint. All counterclaims charge the plaintiff(s) with illegal conduct and thus cast him (or them) in a bad light before the jury; by defendants’ reasoning, prevailing antitrust plaintiffs would be entitled to recover attorney’s fees for defendant counterclaims entirely unrelated to their statutory entitlement to antitrust damages. Neither the statute nor Twin City Sportservice support such a broad proposition. Section 4 of the Clayton Act is specially limited: attorney’s fees under its provisions are incidental to the statutory right to antitrust damages. Twin City Sportservice, supra, 676 F.2d at 1314. Twin City Sportservice sanctioned the award of fees only for the prosecution of unsuccessful claims that nonetheless were directed toward plaintiff’s statutory entitlement to damages. Id. at 1313.

Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706 (N.D.Ill.1982), aptly illustrates the limited circumstances under which a prevailing antitrust claimant properly may recover attorney’s fees for services undertaken to defeat his opponent’s counterclaim. In Independence Tube, plaintiff sued several steel tubing manufacturers under Section 1 of the Sherman Act, alleging that they conspired to bar its entry into the structural steel tubing market. Defendants countersued plaintiff and its presiding officer for allegedly soliciting and hiring away one defendant’s employees in order to acquire that defendant’s trade secrets. On its subsequent application for attorney’s fees, the court held that plaintiff was entitled to fees for services undertaken in connection with the counterclaim.

“The defendants’ counterclaim against Grohne [plaintiff’s presiding officer] and the plaintiff was identical to their defense against the plaintiff’s section 1 claim: the defendants argued that Grohne’s alleged use of trade secrets and indicement of employees both made him liable to the defendants under state law and justified their activities which the plaintiff was claiming violated section 1, thus relieving them from liability under the antitrust laws. Even if plaintiff had not had to defend the counterclaim, the plaintiff’s attorneys would have had to perform the same services to counter the defendants’ defense to the section 1 claim. Therefore, time spent on the counterclaim is also compensable.”

543 F.Supp. at 712 (emphasis added). Thus, where the counterclaim constitutes an independent legal defense to plaintiff’s claims, potentially relieving defendant of any liability under the antitrust laws, the successful antitrust plaintiff is entitled to attorney’s fees for defeating that counterclaim. Clearly, under such circumstances, services undertaken to defeat the counterclaim are “incidental to the statutory right to [antitrust] damages,” Twin City Sport-services, supra, 676 F.2d at 1313; plaintiff could not establish his legal (as contrasted to moral) right to damages without successfully defending the counterclaim.

The services undertaken by defense counsel herein to defeat Syufy’s allegations were not incidental to AMC’s statutory right to recover antitrust damages. Syufy’s allegations did not state a legally sufficient defense to AMC’s counterclaim, potentially relieving Syufy of any antitrust liability — AMC was entitled to recover treble damages from Syufy notwithstanding its own alleged illicit conduct. Perma Life Mufflers v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). Nor did Syufy’s allegations state a factually sufficient defense to AMC’s counterclaim, potentially relieving Syufy of antitrust liability. AMC could have recovered antitrust damages even if it had also been found to have monopolized or attempted to monopolize the film exhibition market in San Jose. As discussed above, the factual allegations of the complaint and counterclaim were not mutually exclusive.

Accordingly, defendants were not obliged, on the law or the facts of this case, to defeat plaintiffs claim in order to prevail on the counterclaim.

B

Defendants argue in the alternative that Syufy’s complaint constituted “vexatious litigation” in defense of which the prevailing defendant is entitled to recover his attorney’s fees.

Ordinarily, in the absence of a statute or enforceable contract to the contrary, the prevailing litigant is not entitled to collect attorney’s fees from his opponent. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-60, 95 S.Ct. 1612, 1621-23, 44 L.Ed.2d 141 (1975); Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir.1982); United States v. Standard Oil of California, 603 F.2d 100, 103 (9th Cir.1979) (hereinafter cited as “SOCAL”). Under one exception to this rule, however, attorney’s fees may be awarded to a successful party when his opponent has acted “in bad faith, vexatiously, wantonly or for oppressive reasons * * F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974); Dogherra, supra; SOCAL, supra. The award of fees in such situations is punitive, and the penalty can be imposed only in exceptional cases and for dominating reasons of justice. Dogherra, supra; SOCAL, supra; 6 J. Moore Federal Practice ¶ 54.77[2] at 1709-10 (2d ed. 1972). One should not be penalized for merely defending or prosecuting a lawsuit. F.D. Rich, supra. In litigation between strangers — parties unrelated by contract or fiduciary ties — the essential element triggering the award of fees is the existence of “bad faith” on the part of the unsuccessful litigant. Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973); SOCAL, supra, 603 F.2d at 103-04. The standards for finding bad faith are necessarily stringent. Lipsig v. National Student Marketing Corp., 663 F.2d 178, 180 (D.C.Cir.1980). The mere fact that a party is unsuccessful on its claims does not warrant a finding of bad faith. Runyon v. McCrary, 427 U.S. 160, 183-84, 96 S.Ct. 2586, 2600-01, 49 L.Ed.2d 415 (1976); Miracle Mile Ass’n v. City of Rochester, 617 F.2d 18, 21 (2d Cir.1980).

Defendants fail to demonstrate that this case falls within the “bad faith” principles cited above. Plaintiff’s claims clearly were not so lacking in merit as to constitute an abuse of the processes of the court. See SOCAL, supra, 603 F.2d at 104. To the contrary, this Court finds from the evidence presented at trial that there was substantial merit in a number of plaintiff’s allegations. See Lipsig, supra, 663 F.2d at 182 (“[Tjhe presence of merit in a claim or defense may well negate any notion of bad faith in its filing * * (Emphasis omitted.)) Nor was there any lack of diligence or earnestness on plaintiff’s part in the prosecution of its claims. Cf. Id. at 181 (fee award against unsuccessful counterclaimants upheld where they had engaged in dilatory tactics during extensive discovery and courtroom hearings). Plaintiff completed extensive discovery, amassed a prodigious amount of evidence, thoroughly briefed and argued several complex pretrial motions (including three partial summary judgment motions), and exhaustively prepared its case for trial, in a little more than two years, a relatively brief period for a case of this magnitude and complexity. At no time during the course of this litigation did it appear to the Court that plaintiff sought any more or any less from this litigation than full and complete recovery for its purported antitrust injury. Accordingly, the Court finds that plaintiff’s suit was not “vexatious” or “sham” litigation in defense of which defendants are entitled to recover their attorneys’ fees.

C

The Court finds, for the reasons set forth in the preceding two subsections, that it cannot avoid determining the proper allocation of defense counsel’s time between the complaint and counterclaim. Unfortunately, the Court must make this determination in a complete vacuum, in the absence of any firm factual showing by either party to support or to contest the figures propounded by defendants herein. The Court could simply deny the defendants attorneys’ fees altogether for counsel’s failure to maintain adequate time records, but such a ruling clearly would lead to inequitable results, depriving defendants of a portion of their treble damage recovery (contrary to the purpose of Section 4), depriving counsel of even nominal compensation for services manifestly valuable, and bestowing upon plaintiff a windfall. With all deference due the integrity of defense counsel, the Court cannot attribute much weight to the entirely speculative estimates set forth in their declarations — the temptation to recollect in a fashion most favorable to their clients is too great.

Accordingly, the Court has thoroughly reviewed the record of this case and based thereon, and on its independent recollection of events occurring at pretrial hearings and at trial, it conservatively estimates that sixty percent of defense counsel’s pretrial and trial services were devoted at least in part to the prosecution of the counterclaim. This estimate is necessarily rough, because defense counsel failed to maintain adequate time records, and necessarily conservative, in order to prevent defendants from reaping a windfall from their counsel’s omission. Defendants, of course, bear the burden of proving their entitlement to fees, and the uncertainty arising from counsel’s inadequate time records has been resolved against them. See In re Capital Underwriters Securities Litigation, supra, 519 F.Supp. at 102 and cases cited therein.

II

The Court will now proceed to determine an appropriate fée award according to the analyses described at the outset of this Memorandum Opinion and Order. First, an appropriate “lodestar” figure will be determined for each of defendants’ counsel. Then these lodestar figures will be examined in light of the Kerr factors.

A

The lodestar figures for the Parkinson and Hackett firms are easily calculated, in view of a number of concessions made by plaintiff. Plaintiff concedes the reasonableness of the total number of hours expended by the Parkinson and Hackett firms on both the claim and counterclaim, and the reasonableness of the hourly billing rates charged by these firms. Plaintiff also agrees that all hours expended after January 8, 1982, the day the jury returned its verdicts, are attributable to the counterclaim. Plaintiff disputes only the number of hours allocated to the counterclaim prior to that date. This Court has determined, as discussed above, that sixty percent of the time charged prior to January 8, 1982, is attributable to the counterclaim.

Benjamin H. Parkinson and William F. Campbell of the Parkinson firm, who served as local counsel for defendants, have filed time records documenting 376.91 hours of service on this case. Their hourly billing rate was $100 per hour from the commencement of the suit until April 30, 1980, and $125 per hour thereafter. These figures, adjusted to reflect the amount of fees found by the court to be attributable to the counterclaim, would yield a lodestar total as follows:

Hours Hours Attributed Billing
Date Claimed to Counterclaim Rate Total
10/31/79-
4/30/83 10.25 60% $100/hr. $ 615.00
5/1/80-
1/8/82 277.61 60% 125/hr. 20,820.75
1/8/82-
10/15/82 89.05 100% 125/hr. 11,131.25
$32,567.00

This lodestar total must be reduced in one respect. Mr. Parkinson claims $375 in fees for services that, as of October 7, 1982, he estimated he would provide at a later date. This request is speculative and does not properly support an award of fees. Therefore, the Parkinson firm lodestar has been reduced to $32,192.

Robert C. Hackett and other members of his firm, who served as lead counsel for defendants, have submitted time records documenting 6396.20 hours of service during this litigation. The hourly billing rate charged by the Hackett firm during the litigation varied from $80 to $120 per hour for partners, $60 to $80 per hour for associates, $50 per hour for law clerks, and $30 to $40 per hour for paralegal staff. These figures, adjusted to reflect the amount of fees found by the Court to be attributable to the counterclaim, would yield a lodestar total as follows:

Hours Attributed
Date Fees Claimed to Counterclaim Total
10/31/79-
1/8/82 $386,083.00 60% $231,649.80
1/8/82-
10/15/82 98,390.50 100% 98,390.50
$330,040.30

The Court finds, however, that this lodestar total must be reduced in several respects. First, the Hackett firm claims $1,683 in fees for services performed from June 15, 1982, until October 7, 1982, with respect to defendants’ claim for injunctive relief. The allowance of attorneys’ fees, as authorized by Section 4 of the Clayton Act, is incidental to the statutory right to damages. Twin City Sportservice, supra, 676 F.2d at 1313. Time devoted to the request for injunctive relief must be excluded. Id. at 1314, 1316. Second, the Hackett firm claims $2,652.50 in fees for services related to the appeal of this case to the Ninth Circuit, which appeal was dismissed without prejudice. Because defendants have not yet prevailed on the merits in the appellate court, this request for fees is premature. Third, the Hackett firm claims $4,500 in fees for services that, as of October 7, 1982, attorneys therein estimated that they would provide at a later date. This request is speculative and does not provide a sufficient basis for an award of attorneys’ fees. Accordingly, the above lodestar figure has been reduced by these amounts in the following manner:

Initial lodestar total $330,040.30
Claim re injunctive relief -1,683.00
Claim re appeal -2,652.50
Claim re post-10/7/82 services -4,500.00
$321,204.80

Plaintiff disputes all of the hours expended by defendants’ general corporate counsel, Alan K. Benjamin, and his associates. Plaintiff provides no basis for its objection other than an observation that three law firms and twelve lawyers worked on defendants’ case, giving rise to a suggestion of overkill. Defense counsel properly note that three of defendants’ attorneys expended negligible amounts of time on the case, and that plaintiff itself employed a number of attorneys to prosecute its claim. The implication arising from plaintiff’s objection is that the duties performed by Mr. Benjamin, essentially document review and client liaison work, were unnecessary or duplicative of the work of other attorneys. Plaintiff offers no proof to support these allegations or to controvert the facts set forth in Mr. Benjamin’s declaration. Plaintiff fails to indicate which services performed by Mr. Benjamin duplicated the efforts of others or why his services, and not those of the other attorneys also, are alleged to be duplicative. In short, plaintiff has made no showing that would support the wholesale exclusion of Mr. Benjamin’s time from the fee award.

The Court finds that Mr. Benjamin and his associates performed valuable services for defendants by: conferring with co-counsel and witnesses, recruiting a key expert witness, Maurice Silverman, to testify in defendants’ behalf, and keeping defendants apprised of the status of the litigation. The Court, however, will reduce the hours documented by Mr. Benjamin for appearances before the Court, except for the hours spent at the pretrial conferences and at trial; defendants need not have been represented at the other hearings by more than one attorney.

Mr. Benjamin has submitted time records documenting 1030 hours of service on this case. His hourly billing rate during this litigation varied between $100 per hour and $124 per hour. These figures, adjusted to reflect the amount of fees found by the Court to be attributable to the counterclaim, would yield a lodestar total as follows:

Hours Attributed Billing
Date Claimed to Counterclaim Rate Total
10/31/79-
12/31/80 147.00 60% $100/hr. $ 8,820.00
1/1/81-5/
31/81 367.00 60% 115/hr. 25,323.00
6/1/81-
1/8/82 333.75 60% 116/hr. 23,229.00
1/9/82-50/hr.
10/15/82 182.25 100% 116/hr.
124/hr. 18,078.00
$75,450.00

This lodestar total must be reduced by the number of hours spent on courtroom appearances other than pretrial conferences and trial. (The Court estimates that approximately 7 of the 10.5 hours documented for court appearances during November 1982 were spent on the November 20 and 30 pretrial conferences.) The lodestar total also must be reduced by the hours Mr. Benjamin claimed, as of October 7, 1982, would be spent on services to be performed thereafter. As stated above with respect to the Parkinson and Hackett firms, such a request is speculative and does not provide a sufficient basis for an award of attorneys’ fees. Accordingly, the lodestar figure has been reduced by these hours as follows:

Item Hours x Allocation x Rate Total
Initial Lodestar $75,450.00
Court Appearances:
10/31/79-12/31/80 8.0 hrs. x 60% X $100/hr. 480.00
1/1/81-5/31/81 3.0 hrs. x 60% x $115/hr. 207.00
6/1/81-1/8/82 3.5 hrs. x 60% x $116/hr. 243.60
1/9/82-10/7/82 Prospective Services: 12.0 hrs. X 100% x $116/hr. - 1,392.00
10/7/82-12.0 hrs. x 100% x $124/hr. - 1,488.00
$73,127.40

B

The above calculations yield a total lodestar figure of $422,780.80 for the services of all counsel. The Court now must determine under the Kerr factors whether this figure should be adjusted upward or downward to reflect the quality of the advocacy and/or the significance of the result obtained in this case.

The Court has thoroughly considered the twelve factors outlined in Kerr and finds that none of these factors justifies enhancement of the lodestar figure by a “positive” multiplier. Three of the factors (time and labor required, customary fee, and the experience, reputation, and ability of counsel) already have been considered above and reflected in the lodestar amount.

Defendants compensated their counsel under a fixed hourly rate fee arrangement; consequently, the lodestar figure is not subject to enhancement for the contingent nature of counsel’s compensation, nor for the preclusive effect the services performed herein had on other fee generating employment.

This case proceeded along settled principles of antitrust law; the legal issues presented were not so novel as to warrant an upward adjustment of the lodestar total. The case did at times present complex and difficult factual issues. However, the unadjusted lodestar figure compensates counsel for a substantial number of hours, which hours adequately reflect the factual complexity of the lawsuit.

Of all the Kerr factors, the skill required of defense counsel to perform their services properly and the results obtained militate most strongly in favor of a positive lodestar adjustment. Defense counsel clearly accomplished a great deal in this litigation, recovering in excess of $3,000,-000 in antitrust damages from the party that initiated the lawsuit, while exonerating their clients of any antitrust liability. Nevertheless, the lodestar multiplier is designed to reward unusual or extraordinary skill. Lindy, supra, 540 F.2d at 118. This Court finds, from its examination of briefs and memoranda submitted by defense counsel throughout the litigation and from counsel’s appearances before the Court, that counsel’s efforts, though clearly excellent, did not rise to the level of exceptional skill justifying an increase in the lodestar total.

To the extent that the length and nature of counsel’s professional relationship with defendants has any bearing on the fee determination herein, it militates against enhancement of the lodestar figure. Messrs. Benjamin and Hackett have represented defendants for twenty-three years and nine years respectively, and thus were accustomed to defendants' business operations, legal needs, and personnel prior to representing defendants in this lawsuit. Though Mr. Parkinson and his firm had no relationship with defendants prior to this suit, his involvement in the litigation was limited relative to the involvement of the other counsel.

Defendants concede that the “undesirability” factor set forth in Kerr does not apply in this case. The Court is unaware of any time constraints imposed on defense counsel by their clients that would warrant an increase in the lodestar figure. Finally, the Court finds that the unadjusted lodestar figure compares favorably with fee awards in similar cases. See, e.g., Wall Products Co. v. National Gypsum Co., 367 F.Supp. 972 (N.D.Cal.1973).

As indicated above, defense counsel displayed excellent (though not exceptional) skills of advocacy in prosecuting and defending this lawsuit to a successful conclusion. Accordingly, a negative lodestar adjustment is unwarranted. Plaintiff does not argue otherwise.

Ill

For the reasons set forth above, the Court finds that defendants are entitled to recover a reasonable attorneys’ fee of $422,780.80 for the services of their counsel in this litigation. Accordingly,

IT IS HEREBY ORDERED that plaintiff, Syufy Enterprises, shall pay to defendants American Multicinema and its related entities reasonable attorneys’ fees in the amount of $425,103.40.

      . Plaintiff filed its complaint on October 31, 1979, pursuant to the Sherman Act, 15 U.S.C. §§ 1 and 2 (count one), the California Cartwright Act, Cal.Bus. & Prof.Code §§ 16600 et seq. and 16720 et seq., and the California Unfair Practices Act, Cal.Bus. & Prof.Code §§ 17000 et seq. (count two), and state tort law (intentional interference with prospective business advantage) (count three). The gravamen of the complaint was that, commencing in April 1973, defendants conspired with unspecified individuals or entities to restrain trade in the exhibition of first-run films in Santa Clara County and to monopolize the relevant market through conduct violative of Sections 1 and 2 of the Sherman Act and certain policies and provisions of state law.
      Defendants filed their counterclaim on November 26, 1979, for violations of Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act, 15 U.S.C. § 14. Defendants alleged that plaintiff had at all relevant times possessed monopoly power in both the indoor and drive-in film exhibition markets in the San Jose zone of Santa Clara County, and that plaintiff used its monopoly power and conspired with various distributors and exhibitors to restrain trade and eliminate competitors.

      . These factors consist of the following: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstance; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

      . The rationale underlying this latter principle is twofold. First, the pertinent provision of the Clayton Act requires success on an affirmative claim, as a condition precedent to the award of attorney’s fees; the provision does not expressly authorize the award of fees for services in defense of a claim. North American Soccer League v. National Football League, 505 F.Supp. 659, 691 (S.D.N.Y.1980); 15 U.S.C. § 15. In the absence of such express statutory authority, the "American” rule of fee awards precludes the prevailing party in a suit from recovering a reasonable attorney’s fee from the loser. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). Second, awarding attorneys’ fees to successful antitrust defendants would defeat the policy considerations reflected in the Clayton Act; the incentive that the prospect of treble damages provides for instituting private antitrust actions would be dampened by the threat of assessment of defendant’s attorney’s fees and other costs as a penalty for failure. Byram Concretanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649, 651 (3d Cir.1967); Juneau Square Corp. v. First Western National Bank of Milwaukee, 435 F.Supp. 1307, 1327 (E.D.Wisc.1977).

      . The Court finds that services undertaken only partially in support of the counterclaim nevertheless are fully compensable under Section 4 of the Clayton Act. Such services would have been performed to some extent even if the counterclaim had been filed in a separate lawsuit; nothing in the fee award cases suggests that a fee claimant or the Court must determine the precise degree to which counsel’s services aided in the successful recovery of antitrust damages. A liberal construction of Section 4 is consistent with its purpose — to encourage private enforcement of the antitrust laws — and with recent Ninth Circuit decisions concerning similar divided efforts by prevailing counsel. See, e.g., Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir.1982) (authorizing award of fees for prosecuting both successful and unsuccessful claims to recover antitrust damages).

      . The categories into which each firm divided its services are as follows: (1) the Parkinson firm — court appearances; preparation, review, and editing of documents; examination of records; subpoenas/depositions; procedural arrangements; jury; research and advice; post trial; (2) the Hackett firm — discovery; pleadings, summary, document, and memoranda preparation; legal research; trial preparation; court appearances; conferences with clients; and (3) the Benjamin firm —documents; depositions; court appearances; conferring with clients and witnesses; conferring with counsel.

      . Defendants refer particularly to claims by Syufy that their president, Stanley Durwood, viewed himself as the “head gorilla” in a fledgling nationwide theatre cooperative; that Durwood’s personal diary was the analogue to Mein Kampf; that defendants were engaged in a "nationwide conspiracy”; that they utilized “fraudulent” bidding to obtain monopolistic advantage; that they were funded by a “National Treasury" located in Kansas City (defendants’ principal place of business).

      . Moreover, under such circumstances, antitrust defendants would file their counterclaims in separate lawsuits in order to avoid the risk of incurring their opponent’s defense-related attorney’s fees. To encourage such a practice would proliferate litigation and defeat the ends of judicial economy currently served by the counterclaim device.

      . Thus, had AMC filed its counterclaim in a separate lawsuit (i.e., had there been no complaint to defend), defense counsel would not have had to perform the same legal services in order to prevail; Syufy’s claims, asserted defensively, would have been inadmissible in a separate lawsuit for law of relevance under the Perma Life rule. Cf. Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 712 (N.D.Ill.1982) quoted at page 1471, supra.

      . Mr. Parkinson attests at page 5 of his declaration that his firm expended a total of 287.16 hours of service on this case from its commencement until August 9, 1982. His time records, however, document a total time expenditure of 333.56 hours for that period. The Court has utilized the figure verified in his time records to calculate the lodestar figure. During oral argument, a question was raised as to whether time expended by defense counsel to prepare the instant fee application is compensable under Section 4 of the Clayton Act. The Court has determined that such time is compensable. See Perkins v. Standard Oil Co. of California, 474 F.2d 549, 554 (9th Cir.1973); Rosenfeld v. Southern Pacific Co., 519 F.2d 527, 530 (9th Cir.1975).

      . Mr. Benjamin reduced his customary billing rate to $50 per hour for services undertaken in connection with the instant application for attorneys' fees.


author: IRVING, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Adolf MEYER, Defendant.
    84-0663-JLI-Crim.
    United States District Court, S.D. California.
    Nov. 30, 1984.

      See also 602 F.Supp. 1480.
    Joan P. Weber, Asst. U.S. Atty., San Diego, Cal., for plaintiff.
    Edmundo Espinoza, San Diego, Cal., for defendant.
   MEMORANDUM DECISION AND ORDER

IRVING, District Judge.

Defendant MEYER’s motion to dismiss the indictment and motion to suppress evidence came on for hearing on October 23, 1984. Joan P. Weber appeared on behalf of the government; Edmundo Espinoza appeared on behalf of the defendant. Having considered all .papers filed in support of and in opposition to the motions, and the oral argument of counsel, the court issues the following memorandum.

BACKGROUND

On June 30, 1984, MEYER exited Mexico and presented himself for inspection at the San Ysidro Port of Entry. MEYER was driving a 1973 Chevrolet pickup and camper with one passenger, a fifteen year old boy later identified as MINOR # 1 in the indictment. A customs inspector directed MEYER to a secondary inspection area where the vehicle was searched. During the search, the officer found a binder containing pornographic pictures of young males, a camera and a notebook containing the names, ages and physical dimensions of young males.

A 28-eount superceding indictment charges MEYER with the following: Counts One and Two charge MEYER with knowingly inducing a minor to engage in sexually explicit conduct for the purpose of producing a print medium, in violation of 18 U.S.C. § 2251. Counts Three through Fifteen charge MEYER with knowingly transporting in foreign commerce a visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1). Counts Sixteen through Twenty-eight charge MEYER with knowingly importing merchandise contrary to law, in violation of 18 U.S.C. § 545.

MEYER moves to suppress evidence taken from the camper and to dismiss the indictment. The court denied, on the record, all but one of these motions at the time of the motion hearing. The court took under submission MEYER’s motion to dismiss Counts One and Two of the indictment on ex post facto grounds. This memorandum addresses that motion.

DISCUSSION

The Child Protection Act of 1984, 18 U.S.C. §§ 2251-2254, enacted May 21,1984, amends the Child Protection Act of 1977. The 1984 amendment changes the law in three aspects which are pertinent to this case. First, the 1984 amendment increases the penalties for violation of the Act and adds a provision for criminal and civil forfeiture. Though the maximum prison term is not increased, the fines for violation of § 2251 and § 2252 are; the maximum fine for first time offenders for either section is increased from $10,000 to $100,000. The maximum fine for persons who have a pri- or conviction under either section is also increased. Second, a “minor” was previously defined as a person under sixteen years of age. A “minor” for purposes of the 1984 Act is redefined as a person under the age of eighteen years. 18 U.S.C. § 2253(1). Third, the amendment removes the requirement that production or assistance in the production of child pornography be done for pecuniary gain. Now the Act prohibits the production, or assistance in the production of, or causing a minor to assist in the production of, a visual depiction of a minor engaged in sexually explicit conduct. 18 U.S.C. § 2251.

MEYER argues that Counts One and Two of the indictment, alleging violations of 18 U.S.C. § 2251, are an ex post facto application of the law.

Count One charges:

In or about March 1984, defendant
ADOLF MEYER did knowingly employ, use, persuade, induce, entice and coerce a minor (hereinafter minor # 1) to engage in sexually explicit conduct for the purpose of producing visual or print mediums depicting such conduct, which such visual or print mediums were thereafter transported in foreign commerce from Mexico to San Diego, California; in violation of Title 18, United States Code, Section 2251.

Count Two charges:

In or about June 1983, defendant ADOLF MEYER did knowingly employ, use, persuade, induce, entice and coerce a minor (hereinafter minor # 2) to engage in sexually explicit conduct for the purpose of producing visual or print mediums depicting such conduct, which such visual or print mediums were thereafter transported in foreign commerce from Mexico to San Diego, California; in violation of Title 18, United States Code, Section 2251.

MEYER asserts that when he took the pictures it was not a crime to do so and that these charges are an ex post facto application of the law. Specifically, he argues that when he produced these pictures in March 1984 and June 1983, he did not do so for pecuniary gain, and as a result, he is now deprived of a defense that had been available when he committed the act. MEYER also asserts that his prosecution is an ex post facto application of the law because the punishment for the crime has increased since he produced the pictures.

The government contends that MEYER’s transportation of the photos, and one of the subjects of the photos after May 21, 1984, and up to the time he was arrested, is part of a continuing series of criminal activity in violation of § 2251. As such, the government argues that prosecution of MEYER under the 1984 amendment would not be an ex post facto application of the law. The government relies on cases which hold that when a series of acts constituting one crime continue up to and beyond the date of a statute’s amendment, prosecution under the amendment is not ex post facto. See e.g. United States v. Woods, 696 F.2d 566 (8th Cir.1982); United States v. Hopkins, 529 F.2d 775 (8th Cir.1976).

An ex post facto law imposes a punishment for an act which was not punishable at the time it was committed or additional punishment to that previously prescribed, or deprives one of a defense available under the law at the time when the act was committed. Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1980); Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925).

In determining whether § 2251 is applied ex post facto in this prosecution, it is necessary to determine what activity § 2251 makes criminal, and when MEYER’s activity that comes within the purview of § 2251 occurred. The court recognizes that its interpretation of § 2251 is one of first impression and relies on a plain reading of the statute and the legislative history. It is clear that § 2251 prohibits the employment, use, persuasion, seduction, enticement or coercion of a minor to engage in, or have a minor assist in, production of visual depictions of sexually explicit conduct. However, it is not clear, as the government would suggest, that § 2251 makes criminal later acts involving interstate transportation of such visual depictions. The express prohibition in 18 U.S.C. § 2252 of interstate or foreign transportation and shipment of obscene visual depictions involving minors suggests that § 2251 is not directed toward or intended to make criminal later transportation of sexually explicit depictions. Section 2251 is violated only if the person producing the child pornography “knows or has reason to know that such visual or print medium will be transported in interstate or foreign commerce or mailed, or if such visual or print medium has actually been transported in interstate or foreign commerce or mailed.” The statute is silent as to who must eventually transport or mail the material.

MEYER’s act of producing the child pornography, the act which § 2251 now prohibits, ceased when he stopped creating the visual depictions and using a minor to do so. The criminal act § 2251 concerns itself with does not include the later travels of the pornography through the mail or interstate or foreign commerce. Section 2252 specifically addresses the mailing or interstate or foreign transportation of child pornography, and MEYER is charged in Counts Three and Four with transportation of the visual depictions named in Counts One and Two, in violation of § 2252.

The court feels the authority cited by the government is not applicable to this case. The court finds that MEYER’s actions that would allegedly violate § 2251 are not a series of acts continuing to and past the statute’s amendment.

The court finds that MEYER’s acts of producing the visual depictions charged in Counts One and Two ceased when he stopped producing the photos in March 1984 and June 1983, respectively. Thus, this court finds that MEYER is charged with a violation of law that imposes punishment for an act which was not punishable at the time it was committed and imposes additional punishment to that previously prescribed. This conclusion is based on two facts; first, that the new statute does not require pecuniary gain nor has the government alleged any, and second, that MINOR # 2 was not a minor by the Act’s definition when the depictions of him were produced.

The court finds that Counts One and Two violate the constitutional prohibition against ex post facto laws and hereby grants MEYER’s motion to dismiss.

IT IS SO ORDERED.


text:
    UNITED STATES of America, Plaintiff, v. Adolf MEYER, Defendant.
    No. 84-0663-JLI-Crim.
    United States District Court, S.D. California.
    Jan. 10, 1985.
    Joan P. Weber, Asst. U.S. Atty., San Diego, Cal., for plaintiff.
    Edmundo Espinoza, San Diego, Cal., for defendant.
   MEMORANDUM DECISION AND ORDER

IRVING, District Judge.

Defendant’s motion in limine to consolidate or strike counts from the indictment was heard in chambers on November 30, 1984, at 9:00 A.M. before the Honorable J. Lawrence Irving. Joan P. Weber appeared on behalf of the government; Edmundo Espinoza appeared on behalf of defendant Adolf Meyer.

Having considered the pleadings and the oral argument of counsel, the court issues the following memorandum decision.

BACKGROUND

The court incorporates the factual statement of its memorandum decision and order in this case, filed November 30, 1984.

DISCUSSION

MEYER argues that the indictment is multiplicitous. Since Counts One and Two were dismissed on November 30, 1984, by order of this court, 602 F.Supp. 1476, the indictment is now comprised of twenty-six counts, Counts Three through Twenty-eight. Counts Three through Fifteen charge MEYER with transportation of material involving the sexual exploitation of children in violation of 18 U.S.C. § 2252(a)(1). Each count relates to the transportation of one photograph contained in a binder that was seized from MEYER’s vehicle at the San Ysidro Point of Entry on June 30, 1984. Counts Sixteen through Twenty-eight charge MEYER with importation of obscene merchandise in violation of 18 U.S.C. § 545. Each count relates to the importation of one photograph (also named in one of Counts Three through Twenty-eight) contained in the binder referred to above.

MEYER argues that the indictment improperly charges him with violation of the same statute several times even though there was but one alleged criminal act. The government argues that the indictment is not multiplicitous because it satisfies the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

The court feels that the issue is not really one of multiplicity but rather one of determining the correct unit of prosecution. See Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1954) (labelling issue in similar case as one of allowable unit of prosecution); United States v. Universal Corp., 344 U.S. 218, 224, 73 S.Ct. 227, 230, 97 L.Ed. 260 (1952) (Blockburger test not employed in unit of prosecution problem); United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir.1981) cert. denied 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982) (when issue is not one involving multiple convictions and sentences under two statutes proscribing essentially same conduct, the question presented involves determination as a matter of law of appropriate unit of prosecution).

MEYER likens his prosecution to that in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1954) and argues that the rule of lenity established in Bell should be followed in this case. In Bell, the petitioner was indicted and pleaded guilty to two counts charging violation of the Mann Act. Bell had transported two women on the same trip, in the same vehicle and each count referred to one of the women transported in that trip. The Supreme Court found that the provisions in the statute defining the crime and fixing its punishment were ambiguous; the statute was unclear whether simultaneous transportation of more than one woman was liable to cumulative punishment under the Mann Act. The court established the following rule:

... if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.

349 U.S. at 84, 75 S.Ct. at 622.

18 U.S.C. § 2252(a)(1) provides, in pertinent part:

Any person who (1) knowingly transports or ships in interstate or foreign commerce or mails or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails any visual depiction, if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct ... shall be punished as provided in subsection (b) of this section.

“Visual depiction” is defined in 18 U.S.C. § 2253 as “any film, photograph, negative, slide, book, magazine, or other visual or print medium.”

18 U.S.C. § 545 provides, in pertinent part:

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.

The question of the appropriate unit of prosecution for 18 U.S.C. § 2252(a)(1) and 18 U.S.C. § 545 is one of first impression. Determination of the allowable unit of prosecution in this case requires interpretation of the phrases “any visual depiction,” in 18 U.S.C. § 2252(a)(1); “any film, photograph, negative, slide, book, magazine, or other visual or print medium” in 18 U.S.C. § 2253; and “any merchandise” in 18 U.S.C. § 545. The court finds that the meaning of the phrases is not obvious from a reading of the statute. The legislative history also provides no guide to their meaning.

A most exacting analysis of a similar unit of prosecution problem was presented in United States v. Corbin Farm Service, 444 F.Supp. 510 (E.D.Cal.1978), affirmed, 578 F.2d 259 (9th Cir.1978) (the Ninth Circuit adopted the section of the district court opinion relating to unit of prosecution problem). In Corbin, the defendant was charged with ten counts of illegal application of a registered pesticide resulting in the death of ten water fowls, in violation of 16 U.S.C. § 703. The defendant argued that the bird deaths resulted from one application of the pesticide and thus, only one count should be charged. The court dismissed nine of the ten counts because it “could not find that Congress had provided ‘clearly and without ambiguity’ for multiple counts in prosecutions under the ... (Act) in the circumstances of this case.” 444 F.Supp. at 531. The statute prohibited the killing of “any migratory bird.” The court found that while the statutory language made clear the fact that killing a single bird is sufficient to create criminal liability, the statute does not clearly indicate that killing more than one bird constitutes more than one criminal offense; standing alone, the language invited more than one interpretation.

The court finds that Congress has not provided clearly, and without ambiguity, for multiple counts in prosecutions under both 18 U.S.C. § 2252(a)(1) and 18 U.S.C. § 545.

This finding is consonant with Corbin and other Ninth Circuit decisions regarding the allowable unit of prosecution for other statutes. In this case, the court feels it is dispositive that the pictures were transported and imported simultaneously. In United States v. Wiga, 662 F.2d 1325 (9th Cir.1981), cert. denied 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982), the court determined that the appropriate unit of prosecution under 18 U.S.C. § 1202 was one count when the criminal act was simultaneous possession of multiple firearms. Thus, this case is distinguishable from those cases in which the criminal acts listed in each count were not simultaneous. See e.g. United States v. Williams, 685 F.2d 319 (9th Cir.1982); United States v. Gann, 732 F.2d 714 (9th Cir.1984); accord Ward v. United States, 694 F.2d 654 (11th Cir.1983).

Accordingly, the court orders the following:

1) Defendant's motion is granted and,

2) The government is ordered to elect one count out of Counts Three through Fifteen, and one other count out of Counts Sixteen through Twenty-eight. All other counts will be dismissed.

3) The government must notify the court and counsel for the defendant of its election by Tuesday, January 15, 1985.


author: DIANA E. MURPHY, District Judge.

text:
    Stella MORRISON, on behalf of herself and her minor children, Plaintiff, v. Margaret M. HECKLER, Secretary of the United States Department of Health and Human Services and Leonard W. Levine, Commissioner of the Minnesota Department of Human Services, Defendants.
    Civ. No. 4-84-1096.
    United States District Court, D. Minnesota, Fourth Division.
    Dec. 10, 1984.
    See also, D.C., 602 F.Supp. 1485.

      Berry Freisen, Steven C. Moon, and Michael Haggedorn, Southern Minnesota Regional Legal Services, St. Paul, Minn., for plaintiff.
    Vicki Sleeper, Sp. Asst. Atty. Gen., St. Paul, Minn., Mary Egan, Asst. U.S. Atty., Minneapolis, Minn., and James Goeser, Dept, of Health and Human Services, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff Stella Morrison brought this class action against defendant Margaret M. Heckler, Secretary of the Department of Health and Human Services (the Secretary), and Leonard W. Levine, Commissioner of the Minnesota Department of Human Services (the State), alleging that a regulation promulgated by the Secretary and implemented by the State does not properly interpret an amendment to the Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. § 602(a)(39). Plaintiff seeks injunctive and declaratory relief, as well as attorney’s fees. Jurisdiction is alleged under 28 U.S.C. § 1331. The matter is now before the court upon the plaintiff’s motion for revised class certification and a preliminary injunction.

In an order dated October 31, 1984, the court preliminarily certified a class of parents in the State of Minnesota who are 18 years of age, who are not full-time students at a secondary school or its equivalent, and whose AFDC or Medical Assistance (MA) benefits have been or will be reduced, terminated, or denied because they reside with a parent or legal guardian. The parties agreed at that time that it was appropriate to delay implementation of the Secretary’s regulation as it affects plaintiff and the certified class pending final determination of the parties’ cross motions for summary judgment. A temporary restraining order issued instructing the county welfare departments to reinstate and continue AFDC and MA benefits for all class members.

Plaintiff now seeks to amend the definition of that class to include 18 year old parents who reside with their parents and who attend secondary school or its equivalent but who are not reasonably expected to complete their school program before reaching the age of 19 years.

The court finds that this amendment is proper under Fed.R.Civ.P. 23 and will serve the interests of judicial economy. The question of law for the additional class members is the same as posed by the original class: whether the Secretary’s rule and the State’s policy is consistent with § 2640 of the Deficit Reduction Act, 42 U.S.C. § 602(a)(39). The additional persons are similarly situated to the plaintiff in that they cannot receive AFDC benefits as children but are subject to the grandparent-deeming rule at 45 C.F.R. § 233.-20(a)(3)(xviii). As members of the class, they would share the same concern of protecting their AFDC benefits without having to move from their parent’s homes.

Since the Secretary opposes the expansion of the class, the court believes that plaintiff’s motion must be analyzed by the factors set forth in Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109 (8th Cir.1981). Whether preliminary injunctive relief should be granted depends upon the showing made on the following factors: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Id. at 114.

The court finds that under these factors a preliminary injunction may properly issue pending determination of the parties’ cross motions for summary judgment. First, the putative class members, as a result of the grandparent deeming rules, may be irreparably harmed by the loss of subsistence benefits. See Cha v. Noot, 696 F.2d 594 (8th Cir.1982). Second, the balance of harm favors the class of plaintiffs. While the Secretary argues that the federal or state government will not be able to recoop overpayments should the Secretary’s interpretation prevail, this harm is outweighed by the harm that faces the class of plaintiffs, who may be deprived of essentia] medical or nutritional child care needs. Third, the named plaintiff, in her summary judgment papers, has shown a likelihood of success on the merits. Finally, the public interest in the proper administration of the Aid to Families With Dependent Children program is best served by the granting of a preliminary injunction.

ORDER

Accordingly, based upon the above, all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. Plaintiff’s motion for a revised class certification is granted and the following class is preliminarily certified:

All parents in the State of Minnesota who are 18 years of age and who are either not full-time students at a secondary school or its equivalent or, if presently attending secondary school, are not reasonably expected to complete their school program before attaining age 19, and whose AFDC benefits have been or will be reduced, terminated or denied because they reside in the same homes as their parents.

2. Plaintiff’s motion for a preliminary injunction is granted enjoining defendants, their agents, officers, employees and representatives, and all persons acting in concert or participating with them, including employees of county welfare departments, from terminating, reducing or denying Aid to Families with Dependent Children (AFDC) or Medical Assistance (MA) benefits to the revised class members or their children because of their residence with a parent or guardian of a class member. This preliminary injunction shall remain in effect until further order of this court.

3. Defendant Commissioner Levine, his successors in office, agents, officers, employees, and representatives shall effectuate this preliminary injunction by the close of the day on December 18, 1984 by notifying each county welfare department within the State of Minnesota, either by telephone or by mail, of this order and instructing the county welfare departments to reinstate and continue AFDC and MA benefits for all class members.