Portnoy v. XTAL Corp.
Portnoy v. XTAL Corp.
Opinion of the Court
MEMORANDUM OPINION ON ATTORNEYS FEES
This is an “insider trading” case in which the plaintiff, Leo P. Portnoy, charged that the defendant, Bert B. Locke, was an “officer” of the defendant XTAL Corporation who made a short swing profit on the purchase and sale of XTAL stock in violation of 15 U.S.C. § 78p(b). Locke bought the stock for $1.04 per share and sold it less than six months later for $7.60 per share, for an alleged short swing profit of $50,-459.52. Portnoy brought this suit on behalf of XTAL Corporation after XTAL refused to bring a suit itself against Locke. XTAL contended that Locke was not an “officer” of the corporation within the meaning of the statute because he had no access to relevant inside information.
The suit was filed on August 16, 1985, and by the time of the Rule 16 conference which was held on November 19, 1985, the parties had reached a settlement. The terms of the settlement, incorporated in a written agreement, are that Locke will pay the corporation $15,000.00 ($5,000.00 in cash and the balance in $5,000.00 installments payable in February 1986 and February 1987), and Portnoy’s attorneys fees will be paid by the corporation in an amount to be set by the court. All that remains to be done now is to set the amount of these fees and enter the agreed judgment order.
Mr. Jerrold M. Shapiro, counsel for Portnoy, requests the sum of $5,000.00 to cover fees and expenses ($4,792.00 in fees and $208.00 in disbursements). In support of his application, he has filed a statement of the time spent on the case, indicating that he has spent 46.25 hours, which, at what he suggests is a reasonable billing rate of $175.00 per hour, would come to $8,093.75 in fees.
In order to determine what benefit the corporation is going to receive as a result of this lawsuit, I asked counsel for the corporation to indicate what fees and expenses the corporation has incurred. I have been furnished with the affidavit of the president of XTAL, indicating that the corporation has incurred attorneys fees of $5,220.00 and expenses of $182.26, for a total of $5,402.26. In addition, the corporation entered into an agreement with the defendant Locke whereby it would pay his fees and expenses in the litigation. Pursuant to that agreement, the corporation is liable for Locke’s attorneys fees in the amount of $1,781.25 and expenses of $418.73, for a total of $2,199.98. The total outlay for the corporation, therefore, is $7,602.24. Subtracting this from the $15,-000.00 which Locke has agreed to pay the corporation, that would leave $7,397.76 for the corporation, assuming Locke actually pays the $15,000.00. But from this amount, Portnoy’s attorney has to be paid. If I were to allow the suggested $5,000.00, that would mean that the net to the corporation from this litigation would be $2,397.76. According to the complaint, there are 1,500,000 shares of corporate stock outstanding. The complaint does not indicate how many shares are owned by Portnoy.
Portnoy argues that the payment of Locke’s fees artificially reduces the apparent net benefit to the corporation. He says that the corporation should not be paying Locke’s fees and that in doing so it is violating public policy.
Returning to the question of what amount should be awarded Portnoy as a reasonable attorneys fee, it seems clear that $4,792.00 would be excessive. We have already seen that the benefit to the corporation from this lawsuit is almost negligible.
The court will allow plaintiff $2,000.00 as attorney’s fees and reimbursement of $208.00 for costs advanced. This sum of $2,208.00 will be paid from the judgment proceeds as provided in the judgment order entered this date.
. One wonders about the benefit to Portnoy himself. The value of his shares in the corporation is obviously not affected by the small settlement here, nor would that value have been measurably enhanced by recovery of the entire $50,459.52 sought in the complaint.
. One of the exhibits to the complaint is a letter to Mr. Shapiro from counsel for XTAL, explaining XTAL’s refusal to institute suit against Locke and remarking that "as members of this firm have had prior correspondence and dealings with you relative to other situations involv
Reference
- Full Case Name
- Leo P. PORTNOY v. XTAL CORPORATION
- Status
- Published